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Sajimon Salim v/s Union of India Ministry of Environment, Forests Conservation Division Government of India

    Original Application No. 29 of 2020 (SZ) With Original Application No. 188 of 2020 (SZ) & I.A. No. 156 of 2022 (SZ)

    Decided On, 14 September 2022

    At, National Green Tribunal Southern Zone Chennai

    By, THE HONOURABLE MR. JUSTICE K. RAMAKRISHNAN
    By, JUDICIAL MEMBER & THE HONOURABLE DR. SATYAGOPAL KORLAPATI
    By, EXPERT MEMBER

    For the Applicant: M/s. Taaurs, Associates, P.B. Sahasranaman, Advocates. For the Respondents: R1 & R5, G.M. Syed Nurullah Sheriff, R2, R3, R4 & R7, E.K. Kumaresan, R6, V.K. Rema Smrithi, R8, M/s. Vipin Warrier & S. Saravanan, Advocates.



Judgment Text

Common Judgment:

K. Ramakrishnan, Judicial Member

1. Both these cases were filed by different individuals making similar allegations of violation of provisions of the Forest Act, Forest (Conservation) Act and other allied Acts dealing with the National Tiger Conservation project.

2. It was alleged in the application [O.A. No.29 of 2020 (SZ)] that certain development work has been undertaken by the 2nd respondent in making construction and developing certain areas within the Periyar Tiger Reserve without obtaining necessary permission from the National Tiger Conservation Authority.

3. According to the applicant, he is a resident of that locality and having concern for protection of environment and ecology of that area. The Periyar Wildlife Sanctuary which covers an extent of 925 Sq.Km. located in Idukki District is declared as „Periyar Tiger Reserve? (PTR) in 1978. The State of Kerala obtained approval from the National Tiger Conservation Authority (hereinafter referred to as 'NTCA') of MoEF&CC for tiger conservation plan as per Order No.F.No.1- 14/2011-NTCA dated 21.03.2013 for the purpose of conservation of tigers in the reserve and for other purposes. While approving the Tiger Conservation Plan, NTCA had clearly stated that the project shall not overrule the existing laws in the country, especially the Indian Forest Act, 1927, Forest (Conservation) Act, 1980 and the Environment (Protection) Act, 1986. In the guise of the above sanction order, the Department of Tourism, State of Kerala wanted to develop the area and make certain constructions in the Tiger Reserve and they constructed a mega car parking facility at Anavachal. Since the said activity was illegal, challenging the said construction/conversion of forest area, two applications were filed by Mr. M.S. Thankappan and Mr. Abraham Thomas as O.A. No.89 of 2014 and 212 of 2014 before this Bench seeking a relief for protecting the environment. In the above said cases, the Tribunal passed a Judgment on 15.11.2017 (wrongly shown as 15.11.2015 in the application) ordering that the project authority is to continue the establishment and operation after obtaining all requisite consent and clearances. The operative portion of the said order is as follows:-

“64. Considering the observations of the Hon'ble Supreme Court quoted earlier, the comprehensive guidelines issued by the NTCA which are scrutinised and approved by the Hon'ble Supreme Court, and the fact that the tourism activities listed in Chapter 23 of the Tiger Conservation Plan have been approved by the competent authority, we hold that such activities do not amount to diversion of forest land and utilization of forest land for non-forest purpose attracting the provisions of the Forest (Conservation) Act, 1980. The NTCA is a statutory body constituted under Section 38-O (1)(c) of the Wildlife (Protection) Act, 1972 under the Chairmanship of Minister for Environment and Forest consisting various responsible authorities and experts in the field as members including the Secretary and Director General of Forests, MoEF&CC. When they examined the draft management plan and approved the TCP, including the development of tourism activities, we cannot agree with the argument put forth by the applicants that such activities attract the provisions of the Forest (Conservation) Act, 1980 and therefore necessary clearance has to be obtained. If the constitution of NTCA vis-a-vis Forest Advisory Committee (FAC) which recommends Forest Clearance cases for the diversion of the forest lands is examined, it is clear that the constitution and representation of official and non official members is wider than the FAC. When the Chairperson of the FAC who decides the Forest Clearance proposals, himself is a member of the NTCA, which approves the TCP, we find it not necessary to again approach the MoEF&CC with the proposal to obtain clearance under the Forest (Conservation) Act, 1980 as the ecotourism activities involving the local communities are ancillary to the conservation, development and management of forests and wildlife.

65. With regard to obtaining „consent? from the State Pollution Control Board for the establishment and operation of the facilities, including STP, the Project authorities have already submitted proposals and given undertaking that such activities will be established and operated only after the Board grants „consent?. We hold that such activities shall be undertaken only after obtaining requisite consent.

66. Accordingly we dispose both the applications viz. Application No. 89 of 2014 and Application No. 212 of 2014.

M.A. No. 176 of 2015 in Application No. 212 of 2014 will not survive in view of the judgement. No orders as to costs.?

4. Though the Tribunal directed the authorities to obtain consent, without obtaining necessary consent from the Pollution Control Board, the respondent authorities proceeded with the construction of mega car parking at the edge of the forest area and completed the project without necessary pre-consent. So, the applicant approached the Tribunal by filing application praying to demolish the illegal constructions made without prior permission and assess the damage caused due to the illegal construction for using the same to restore the impugned area. Now, the respondent authorities had started to covert a portion of the forest area as a football ground. The said area is comprised in Sy. No.67/1 of Periyar Village, Peeramedu Taluk and for constructing the said playground, the respondent authorities had deployed heavy machineries/earth movers to flatten the terrain. This playground is 4 Km from the public road i.e. Vallakadavu Forest Check post and the impugned site is a crucial zone of the forest where tigers were sited frequently. If the impugned project is left unattended by the authorities, it shall affect the ecology of the area. Though the said area is in the core zone, the respondent authorities had not bothered to protect the place and had developed non-forest activity without any permission. The respondent authorities had altered the topography of the area using earth movers and the accumulated earth at one corner of the playground is likely to be spread in case of rain and cause severe damage to the ecology of the forest. The said activity is made in the core area of the forest which brings a threat to the life of animals in the forest. The respondent authorities had started the construction activity inside the core area in December 2019. Once the applicant came to know about the same, he sent a representation to the authorities on 13.01.2020, but till date, no action was taken by the authorities and the impugned portion of the forest remains flat and without trees and every day, conversion upgrades with the help of heavy machineries. The photographs produced along with the application as Annexure - 2 will go to show the nature of degradation caused to the forest area by the activities of the respondents.

5. According to the applicant, respondents have violated the environmental laws and committed dereliction of their duty in protecting the forest. Infringing the law of the land, the respondent authorities had converted the core forest zone as football ground.

6. Since the official respondents did not take any action, the applicant filed this application seeking the following reliefs:-

“a) Declare the impugned construction at S.No. 67/1, Periyar Village, Peerumedu Taluk as illegal.

(b) Direct the respondent authorities to restore the impugned part of the forest area

(c) Direct the respondent authorities to plant trees and improve the environment of the area

(d) Direct the respondent authorities to assess the damages, that had been caused due to illegal construction, and use the same in remediating the impugned area and

(e) Pass such further and other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case.?

7. In the meanwhile, another application [O.A. No.188 of 2020 (SZ)] was filed by another person making similar allegations and also mentioned about the filing of application as O.A. No.29 of 2020 by the applicant therein.

8. It was also alleged in the application that when an online petition to the 1st respondent was made by the applicant on 28.01.2020 about the illegal construction of playground near Vanchivayal Tribal Colony in Vallakkadavu Range of Periyar Tiger Reserve, it was informed by the 3rd respondent that on 27.02.2020, the vigilance wing is conducting enquiry about the same and that one Mr. Sajimon had filed O.A. No.29 of 2020 before this Tribunal.

9. It was further alleged in the application that the area that is converted to playground is about 40,000 Sq.ft. approximately and the Google image of the site would clearly establish the nature of conversion carried on and impact that would affect the animals of the forest. Further, in the month of December 2019, a tournament had also been conducted in the said playground, wherein Smt. Silpa V Kumar, Deputy Director, Periyar Tiger Reserve, East Zone was invited as a chief guest of the tournament. The news regarding the illegal work and football tournament has been published after two weeks of the tournament. On 14.01.2020, the President of Vanchivayal Eco Development Committee as the User Agency had submitted Form - A application as per the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of the Forest Rights) Act, 2006 for renovation of the playground. Further, the Range Forest Officer - Vallakkadavu had submitted Form - B Report to the Deputy Director, Periyar Tiger Reserve East. Accordingly, the Deputy Director had accorded sanction for renovation of 0.3711 Ha. area for the football ground as per the Section 3 (2) of the said Act. The said regularization had been done post construction tournament which is against the law, when prior permission is required. As per the above said Act and Rules, for the settlement of forest right, Grama Sabha meeting should have been held with sufficient Coram of members and resolution should have been passed regarding the claim of forest rights and thereafter, it has to be forwarded to the authorities and the authorities will have to consider and ultimately, the Central Government will have to grant permission for this purpose. But, no such procedure has been adopted in this case.

10. Further, it was alleged in the application that as per Section 38 V of the Wildlife (Protection) Act, 1972, the expression „Tiger Reserve? includes core or critical habitat area of the National Park or Sanctuaries, where it has been established, on the basis of the scientific and objective criteria, that such area are required to be kept inviolate for the purpose of tiger conservation without affecting the rights of the Scheduled Tribes or such other forest dwellers. The construction of football ground in Periyar Tiger Reserve using earth moving machine and organizing football tournament in the said ground, resulted in clear violation of the above said provisions. From the vigilance report, it was revealed that the Conservator of Forest, (I&E), Kottayam, all the works related to the construction of football ground were done violating the existing Forest and Wildlife legislations. The said illegal activity has been carried out in the core area of the Tiger Reserve adjacent to Vanchivayal Tribal Settlement. As per the buffer zone notification of Periyar Tiger Reserve vide G.O.

(P) No.18/2011/F&WLD, the location where the ground was constructed is not included in the buffer area which means the area is inside the core area of the Tiger Reserve. Only Vanchivayal Tribal Settlement areas are excluded from the core area.

11. So, the applicant filed this application seeking the following reliefs:-

“a) Declare the impugned construction, without mandatory prior permissions, as illegal.

(b) Direct the respondent authorities to take action against the officials, for their inaction and permitting the illegal act in the forest area

(c) Direct the respondent authorities to assess the damages, that had been caused due to illegal construction, and use the same in remediating the impugned area and

(d) Pass such further and other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case.?

12. Vide Order dated 07.02.2020, while considering the O.A. No.29 of 2020 (SZ), this Tribunal appointed a Joint Committee comprising of

(i) District Collector - Idukki District, (ii) Principal Conservator of Forest (Wildlife) and Chief Wildlife Warden, Kerala, (iii) an Officer from National Tiger Conservation Authority, Government of India, Regional Office, Bangalore and (iv) Kerala State Pollution Control Board to inspect the area in question for considering the allegations made in the application and directed them to submit a factual as well as action taken report, if there is any violation found. The National Tiger Conservation Authority, Regional Office, Bangalore was designated as the nodal agency for coordination and also for providing necessary logistics for this purpose.

13. This Tribunal also passed a status quo order directing the 2 nd respondent not to carry out any activity or further development in that area until further orders from the Tribunal.

14. An application was filed by one T. Ajayan as person interested in protecting the Tribal welfare in that area to implead him in the application as additional respondent as I.A. No.61 of 2020 (SZ) in O.A. No.29 of 2020 (SZ) and this Tribunal allowed that application and impleaded him as additional 8th respondent in O.A. No.29 of 2020 (SZ).

15. The 4th respondent filed reply in O.A. No.29 of 2020 contending that the exact wordings in the approval letter of Tiger Conservation Plan are as follows: ?At no stage of implementation of various prescriptions of the TCP relating to the Tiger Reserve, shall overrule the provisions of: (i) The Wildlife Protection Act, 1972. (ii) The Indian Forest Act, 1927. (iii) The Biological Diversity Act, 2002. (iv) The Environment (Protection) Act, 1986. (v) The Forest (Conservation) Act, 1980. (vi) The National Forest Policy, 1988. (vii) The Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. (viii) The directives issued from time to time by Hon'ble Supreme Court of India.? evidenced by the copy of the letter of NTCA dated 21.03.2013 produced along with the counter as Annexure - 1. But the applicant had modified the wording from the sanctioned order to suit his convenience. They denied the allegation that under the guise of above sanction order, the Department of Tourism, State of Kerala wanted to develop the area and make certain construction is not correct. The Department of Tourism, Government of Kerala has issued sanction order vide G.O. dated 25.06.2013 for establishment of the above facilities in Periyar Tiger Reserve based on a proposal from the Forest Department viz., a. Parking area, b. Sewage solution including dredge wall along the side of Nallah and c. Battery operated vehicles and this was incorporated as per the approved Tiger Conservation Plan, relevant pages of which were produced as Annexure - 2 along with the counter. This Tribunal had observed by Judgment dated 15.11.2017 that the car parking facility does not require clearance under the Forest (Conservation) Act, 1980. As the ecotourism activity are ancillary to the conservation, development and management of forest and wildlife, the applicant even after being fully aware of the above said Judgment, had stated in this application that the activity was illegal. Activities were not forestalled by the Judgment, but the Tribunal ordered the project authority to continue with the establishment and operation after obtaining all requisite consent and clearances. As per Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981, the industries or plants that are likely to discharge sewage or trade effluents are required to obtain Consent from the Pollution Control Board. The Forest Department has not started the work of Sewage Treatment Plant yet. The requisite consent will be taken from the Pollution Control Board before establishment of the Sewage Treatment Plant. The interpretations made by the applicant regarding the observation made in the Judgment in the earlier proceedings are not correct. The parking area has been constructed as per the approved Tiger Conservation Plan and this was accepted by the Tribunal holding that the approved Tiger Conservation Plan did not require clearance under the Forest (Conservation) Act. The applicant also filed another application as O.A. No.34 of 2020 (SZ) before this Tribunal raising the contention that the construction of car parking area in Anavachal is illegal and that application is pending. Forest dwelling Scheduled Tribes of Vanchivayal Tribal Colony is located in the buffer zone of Tiger Reserve, have repaired their already existing traditional gathering place which is also used by the children of the Tribunal Colony, Tribal School and Anganwadi for playing. The repair work was undertaken by the tribes themselves using money from the Eco-Development Committee and no Government money has been spent for the same and the Forest Department has not undertaken the work as alleged and the applicant had wilfully did not mention anything about the existence of Tribal Colony, but distorting the facts, filed this application to mislead the Tribunal. The Vanchivayal Tribunal Colony including three settlements are included in the buffer area vide Notification of buffer dated 06.04.2011 of Government of Kerala produced as Annexure -

3. It was further contended that the said notification of buffer area states that ?to promote the co-existence between wildlife and human activity with due to recognition of the livelihood, developmental, social and cultural rights of local people, the area of Periyar Wildlife Sanctuary kept out of the critical tiger habitat is now declared as buffer area to the critical tiger habitat.? So, the repair of already existing traditional gathering place by the Scheduled Tribes is an activity of the exercise of social and cultural rights of the Scheduled Tribes in an area demarcated for the same as per Section 38 V of the Wildlife (Protection) Act, 1972. These facts were conveniently suppressed by the applicant. The said activity was carried out by the Tribal people without felling any trees and merely levelling the ground by removing the silt brought in by the floods of 2018 and 2019 and the Google Earth images of the area before and after the said repair work is produced as Annexure - 4. The forest dwelling Scheduled Tribes have been given certain privileges and rights by the existing laws of the country and the repair works carried out by the Scheduled Tribes in the surrounding of their settlement is well within the limits of the recognized livelihood, developmental and cultural rights of the forest dwelling Scheduled Tribes. The applicant had wilfully suppressed that the said work was undertaken inside the colony of Scheduled Tribes with a view to mislead the Tribunal and tarnish the image of the Forest Department. So, they prayed for accepting their contentions and passing appropriate orders.

16. Respondents Nos.1 & 5 have filed counter through the Inspector General of Forests, National Tiger Conservation Authority contending that the National Conservation Authority is a statutory body under the MoEF&CC constituted under the enabling provisions of Wildlife (Protection) Act, 1972 as amended in 2006 for strengthening the tiger conservation as per power and functions assigned to it under the said act. It has been successful in fulfilling its mandate within the ambit of Wildlife (Protection) Act, 1972 for strengthening the tiger conservation in the country by retaining a oversight through advisories/normative guidelines based on appraisal of tiger status, ongoing conservation initiatives and recommendation of especially constituted committees. (As such, the National Tiger Conservation Authority has an overarching role in the matter of Tiger Conservation.) It is brought to the notice of the Tribunal that the State Government is mandated with a day-to-day administration of the field formation within the state as per the Wildlife (Protection) Act, 1972. The National Tiger Conservation Authority assists the tiger range states by hand holding and providing necessary funding support for protection, strengthening the anti-poaching activities, including special strategy for monsoon patrolling for deployment of anti-poaching squads invoking ex-army personnel and other home guards, apart from work force comprising of local people, in addition to strengthening of communication and wireless facilities on site specific basis. Guidance to tiger range States is provided through the NTCA (Normative Standards for Tourism activities and Project Tiger) Guidelines, 2012 u/s 38 O (1) (c) of Wildlife (Protection) Act, 1972. As regards the allegation in Para 1, as per the Section 38-V (3) of the Wildlife (Protection) Act, 1972, the State Government is required to prepare Tiger Conservation Plan for each tiger reserve and relevant portion of which is reproduced below:-

“(3) The State Government shall prepare a Tiger Conservation Plan including staff development and deployment plan for the proper management of each area referred to in sub-section (1), so as to ensure:--

(a) protection of tiger reserve and providing site specific habitat inputs for a viable population of tigers, co-predators and prey animals without distorting the natural prey-predator ecological cycle in the habitat;

(b) ecologically compatible land uses in the tiger reserves and areas linking one protected area or tiger reserve with another for addressing the livelihood concerns of local people, so as to provide dispersal habitats and corridor for spill over population of wild animals from the designated core areas of tiger reserves or from tiger breeding habitats within other protected areas;

(c) the forestry operations of regular forest divisions and those adjoining tiger reserves are not incompatible with the needs of tiger conservation.?

17. It is further contended that the core area or critical habitat of tiger reserve as notified under Section 38 V (1) of Wildlife (Protection) Act, 1972 is required to be kept as inviolate for the purpose of tiger conservation. So, they prayed for accepting their contentions and passing appropriate orders.

18. The 3rd respondent filed common statement (in both the cases) on their behalf and on behalf of Respondents Nos.4 & 7 through their standing counsel reiterating certain contentions raised by the 4th respondent in their reply affidavit. They denied most of the allegations made in the application regarding the involvement of the State Government in improving the playground etc. In fact, the Eco- Development Committee had only undertaken the repair of the existing football ground which was used by the tribal community using their own fund and no amount was spent from the Government exchequer for this purpose. There was no conversion of forest land to any non-forest activity as alleged. The Vanchivayal tribal colony including three settlements are included in the buffer area vide notification of buffer dated 06.04.2011 of Government of Kerala produced as Annexure - 2. It is further contended that the said notification of buffer area states that ?to promote the co-existence between wildlife and human activity with due recognition of the livelihood, developmental, social and cultural rights of local people, the area of Periyar Wildlife Sanctuary kept out of the critical tiger habitat is now declared as buffer area to the critical tiger habitat?. The legal provision for buffer area of tiger reserve is given in section 38(v)(4)(ii) of the Wildlife (Protection) Act which reads as follows, ?Buffer or peripheral area consisting of the area peripheral to critical tiger habitat or core area, identified and established in accordance with the provisions contained in Explanation (i) above, where a lesser degree of habitat protection is required to ensure the integrity of the critical tiger habitat with adequate dispersal for tiger species and which aim at promoting coexistence between wildlife and human activity with due recognition of the livelihood, developmental, social and cultural rights of the local people, wherein the limits of such areas are determined based on the scientific and objective criteria in consultation with the concerned Gram Sabha and an Expert Committee constituted for the purpose?. So, the repair of the already existing traditional gathering place by the Scheduled Tribes is an activity of the exercise of social and cultural rights of the Scheduled Tribes in an area demarcated for the same as per section 38(V) of the Wildlife (Protection) Act, 1972. The existence of Tribal colony and it is in the buffer area of Periyar Tiger Reserve, etc. were suppressed by the applicant. They have produced the photographs as Annexure - 3 along with the statement to show that the nature of work undertaken by the Tribunal community for repairing the existing football ground in that area. The committee constituted by the Tribunal visited the site in question on 18.06.2020 and made inspections and perused the relevant documents with special reference to the submissions made by the applicant in the O.A. No. 29/2020 (SZ) and submitted the report before the Tribunal on 27.07.2020. The applicant in O.A. No.188 of 2020 was not a party to the above litigation and he was not connected with the facts of this case at the time of committee?s inspection. The playground in question is actually a community gathering place and was in existence at the site, as evident from the Google earth imageries. The said ground has slopping and during the mega floods of 2018 and 2019, it was damaged further by silt deposition. The repair work was done by the tribal community themselves through their Eco-Development Committee, considering the extent of the ground, the quantum of the work done was very minimal and there is no adverse impact on the movement of wildlife in that area. The Vanchivayal Tribal Settlement of Oorali tribes is located inside Periyar Tiger Reserve which was not mentioned by the applicant. In the historical Google Earth images of the site, it was found that a cleared area has been in existence at the site in the image of 2012. The single tree in the middle of the ground is still present in the same location. In the minutes of the „Gram Sabha? (Oorukoottam) held on 25.04.2017, it was recorded that ?It has been decided to undertake the maintenance of the playground presently used by the children of the (Vanchivayal) colony?, evidenced by Annexure- 4. The said Gram Sabha was attended by 41 members of the tribal colony as has been seen from the minutes. So, the allegation that no meeting was held by the Panchayat Secretary and no resolutions were passed was not correct. The said recommendation of the Gram Sabha was submitted before the District Level Working Group for the Scheduled Tribes under the chairmanship of the District Collector and in the meeting held on 07.09.2018, a proposal for making playground for promoting the athletic and artistic skills of the tribal children was considered and the minutes was produced as Annexure - 5. The meeting minutes of the EDC dated 25.04.2017 and 14.11.2019 had recommended repair of the „maidanam? (ground) and it has been seen that the process was initiated by the Oorukoottam more than two years before the work. The said ground is part and parcel of the Vanchivayal Tribal Settlement and it has been included in the Buffer Area of the Tiger Reserve in the notification of the Govt. of Kerala dated 06.04.2011. It can be seen that Vanchivayal tribal settlement along with 400 meter distance from its periphery is included in the buffer zone of Periyar Tiger Reserve. The extent of area included in the buffer zone can be verified from the proposal of the Buffer Area sent by the Field Director, evidenced by Annexure-6, and the proposal of the PCCF & Chief Wildlife Warden for declaration of the Buffer Zone of Periyar Tiger Reserve was sent to the Government, evidenced by Annexure-7 and the relevant portion of the Government Order dated 06.04.2011 published in the Government gazette reads as follows ?to promote the co-existence between wildlife and human activities with due recognition of the livelihood, developmental, social and cultural rights of local people, the area of Periyar Wildlife Sanctuary kept out of the critical Tiger Habitat is now declared as buffer area to the critical Tiger Habitat?. The notification of MoEF&CC dated 15.01.2016, in Para 5 of Appendix - IX, it has been stated that Community works like de-silting of village ponds or tanks, construction of village roads, ponds, bunds undertaken in Mahatma Gandhi National Rural Employment and Guarantee Scheme, other Government sponsored schemes, and community efforts are excluded from taking Environmental Clearance, evidenced by Annexure - 8. So, they prayed for accepting their contentions and dismissing the application.

19. The additional 8th respondent filed reply in O.A. No.29 of 2020 contending that he is the representative of the residents of Vanchivayal Tribal colony, located in the Vallakkadavu Range of Periyar Tiger Reserve, Kerala. They denied the allegation that the authorities were taking steps to convert the core area located in Periyar Tiger Reserve as playground. The said open ground is not a part of the core area of Periyar Tiger Reserve. The impugned area forms part of the Vanchivayal tribal settlement and falls within the ambit of community forest resource as defined under the Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006. The Application was filed with an intention to strip- off the tribal community forming part of vanchivayal tribal colony from the fundamental rights of „Right to Life? and various rights conferred under the Forest Rights Act, 2006. The Vanchivayal Tribal Settlement is situated in Vallakadavu Range of Periyar Tiger Reserve East Division and is not forming part of the core zone of Periyar Tiger Reserve. It is inhabited by 76 numbers of Oorali families since 1940 and located inside the forests and around 3.5 km away from the nearby public road. Most of the families of the tribal colony earn their livelihood through organic agriculture, particularly the cultivation of pepper. Till two decades ago, they had been living in complete drudgery and penury and suffers heavily at the hands of middlemen till the Periyar Tiger Reserve management intervened through the constitution of a tribal Eco-Development Committee (a participatory forest management institution at the grass root level) and supported the running of anganavadi, nursery, school and other socio-cultural and economic activities of the tribal settlement. Through these interventions, the status of the tribal communities of the Vanchivayal colony has improved substantially and it has been rated as the second best tribal settlement in the State of Kerala by the Government of Kerala in 2018- 19. The impugned open area which has been alleged as a football ground in the instant Application is an integral part of the Vanchivayal tribal settlement and is used by the members of the tribal community ever since its inception as a common gathering place for rituals, festivals, marriages and as a playground for children studying in the anganavadi and also for the youth of the colony. The Vanchivayal tribal colony consists of three bids of settlements, one temple, anganvadi, maidanam (open ground), community hall, school, library and approach road. The open ground is a common gathering place ever since the establishment of the settlement, falling within the ambit of a community forest resource, and is surrounded by the houses of the vanchivayal tribal colony and is an integral part of the vanchivayal tribal colony. The fact that the open ground is forming part of the Vanchivayal tribal settlement is evident from the Google maps and the map prepared by the Forest Department as part of the Resource use Micro plan of the Forest Department. The allegations made contra are denied. The Government of Kerala delineated the core/ critical tiger Habitats and Buffer areas of Periyar Tiger Reserve and vanchivayal and Vanchivayal tribal settlements were included in the buffer area of Periyar Tiger Reserve and excluded from the core/ critical tiger Habitat as per the Notification of Government of Kerala dated 06.04.2011. It is clear from the expression in the said Notification in Para 4 that 'vanchivayal tribal settlement including 3 bids of settlement?. As per the approved tiger conservation plan of the Periyar Tiger Reserve, the total area of the three bits of tribal settlements in the vanchivayal tribal settlements is 39.34 ha whereas the total area of the tribal colony mentioned in the calculation of the buffer area comes to 50 ha. The additional 10.66 ha is the area occupied by the community forest resources of the tribal colony included in the buffer area. It is evident that the Vanchivayal tribal colony comprises of three bits of settlements (39.00 ha) and the community forest resources, temple, anganvadi, maidanam (open ground), community hall, school, library and approach road (10.00 ha), thus forming a total area of 50.00 ha is in the buffer area of the Tiger Reserve and not in the core/ critical tiger Habitat of the Tiger Reserve. This is the only a space available inside the settlement. The maintenance of the open space /ground was always the responsibility of the tribal community and this time also the same was done as always being done without the cutting of trees or increasing the extent. The road which connects two bits of settlement passes through the ground and it adds to the total area of the ground. During the mega floods of 2018 and 2019, wreaked havoc in Kerala, this open space was badly damaged through accumulation of silt and that was removed by the communities. This was also necessary for clearing the blockages in the road that was damaged in the disastrous floods that passes through the middle of the open space/ ground and is the only connecting road between the tribal settlement and outside world. The Applicant suppressed the fact that the ground is a part of a tribal colony and the applicant being a native of nearby Kumily town was very much aware of this fact, but willfully suppressed the same in the application. No activities causing damage to the ecology of the area was undertaken in the said open ground. The works for maintenance of the open ground, being community forest resource was undertaken without felling of trees or expansion of existing area as decided by Gram Sabha and EDC. Any objection to the same would tantamount to denial of traditional rights to the tribal community and their right to live. Being the residents of the Vanchivayal tribal settlement who are law abiding and have been living in perfect harmony with the forests and in proactive engagement with periyar Tiger Reserve, the Gram Sabha (oorukoottam) on 25.04.2017 had decided to undertake the maintenance of the open ground/ playground presently used by the children of the vanchivayal colony. The tribal colony is entitled to undertake maintenance of the open ground in terms of the provisions of the Forest Act, 2006. From the Social Resources Land Use Map of the Village Micro plan prepared jointly by the Forest Department and Vanchivayal Eco development committee, submissions of the villagers and Google Maps, it is evident that the open ground/ maidanam of vanchivayal has been in existence since long and customarily used by the community as a common gathering place for festivals, rituals, functions and playground for children. They have produced the Village Micro plan, Google images and submissions of the villagers along with the counter. The welfare of the Tribal community is a stated objective of the Government, Forest Department and civil society. Eco development committees have been constituted in the tribal settlements of Kerala with this object. Vanchivayal tribal settlement is one of the best tribal settlements of Kerala in terms of social welfare, involvement of tribal communities in forest protection and community empowerment. The repair and maintenance of the open space (ooru maidanam) was always done by the community either as a community activity (if it's of small scale) or as an outsourced work (if the quantum of work is more). In this case, a JCB was already hired for the purpose of digging and cleaning a pond inside tribal settlement and the same was used for removing the debris accumulated in the ground and road, without cutting even a single tree or increasing the extent of the already existing open space. The photos submitted by the Applicant to establish heavy earth movement is done is not correct and it is misleading. It was taken in such a way as to mislead the Tribunal that mud deposited appears to be a mountain of soil. They have not produced the documents to show that the genuineness of the photographs taken. Any action done in good faith precludes any prosecution under Section 10 of the Tribal Right Act. All these activities were done in the existing playground and no additional lands were acquired for this purpose and it was done by the community people as permitted for utilizing the existing playground (open ground) for their purpose as community resource permissible under the Forest Rights Act, 2006 and the allegations made contra are not correct and denied. So, they prayed for accepting their contentions and dismissal of the application.

20. Pursuant to the direction of this Tribunal, the Joint Committee has filed the report signed by one member (Consent of the other members were obtained by circulation) dated Nil, received 28.09.2020 which reads as follows:-

"REPORT OF JOINT INSPECTION COMMITTEE IN THE MATTER OF SAJIMON SALIM VS UNION OF INDIA & OTHERS (ORIGINAL APPLICATION NO. 29/2020 (SZ)) BACKGROUND:

The petitioner has filed his Original Application 29/2020 (SZ) with the grievance that development work is being undertaken by the second respondent (State of Kerala) in making constructions and developing certain area within the Periyar Tiger Reserve without obtaining necessary permission from National Tiger Conservation Authority.

The Hon’ble National Green Tribunal (SZ) vide its order dated 07.02.2020 had appointed a joint committee comprising of the (i) District Collector Idukki, (ii) Principal Chief Conservator of Forests (Wildlife) & Chief Wildlife Warden State of Kerala, (iii) an officer from National Tiger Conservation Authority Govt. of India Regional Office, Bengaluru and

(iv) an officer from Kerala State Pollution Control Board to inspect the area in question for considering the allegations made in the petition and then submit a factual and action taken report if there is any violation found within a period of two months.

The petitioner was asked to submit a set of papers to the above said authorities within a week which has not been complied.

Initially Periyar Wildlife Sanctuary with are of 777 sqkm was constituted as Tiger Reserve in 1978. As per section 38 (V) ,incorporated by amendment during 2006), of WLPA 1972 it is mandatory to delineate the core (critical) tiger habitat and buffer to the tiger Reserve. Therefore, vide GO GO (P) No. 75/07/Forest and Wildlife Department dated 31st December 2007, 881 sq km of forest area was declared as core of Periyar Tiger Reserve which consisted of 733 sq km out of 777 sq km of Periyar WLS and 148 sq km of Goodrickal Range of Ranni Division added to Periyar Tiger Reserve. Thus 44 sq km of erstwhile area of Periyar WLS was kept out of the Core area of Periyar Tiger Reserve.

Further, the proposal to notify the Buffer Area initiated by the Field Director and the PCCF, Wildlife & Chief Wildlife Warden indicates that the area of 44 sq km ?...includes the areas of tourism zone having areas leased out to Kerala Tourism Development Corporation, Kerala Labour welfare Board and Taminadu Electricity Board, Offices and Staff Quarters, the zone of influence of the Labbakandom tribal settlement, the trek routes and establishments utilized for the ecotourism of Periyar Tiger Reserve, settlements such as Vanchivayal, Moozhickal and Pambavalley region and their zone of influence, vallakadavu-gavi road, the areas leased out to Travancore Devaswom Board in Periyar Tiger Reserve (at Sannidhanam and Pamaba) and the roads and trek routes to these areas...? Buffer notification G.O.(P) No. 18/2011/F&WLD dt 22 nd March 2011 , inter alia notifies 8 sq km of area of human settlements,as buffer area , which are peripheral and contiguous to the core or critical tiger habitat of Periyar Tiger Rserve notified as per GO (P) No. 75/07/Forest and Wildlife Department dated 31st December 2007. In the Explanatory Note to the said notification, interalia, following object is expected to be achieved by the buffer notification ?... to promote the co-existence between wildlife and human activity with the recognition of the livelihood, develomental , social and cultural rights of local people, the area of Periyar Wildlife Sancurtuary kept out of the critical tiger habitat is now declared as fuffer to the critical tiger habitat...? FIELD INSPECTION:

The joint committee consisting of the following members (i) to (iv) as above inspected the site in question on 18.06.2020 and perused the relevant documents with special reference to the submissions made by the petitioner in the OA no. 29/2020 (SZ) and the order of the Hon'ble NGT.

Sl Committee

No. Members

1 Sri. Surendra Kumar

Principal Chief Conservator of Forests & Chief Wildlife Warden, Kerala 2 Sri. H Dineshan District Collector, Idukki District, Kerala 3 Sri Eby Verghese Environmental Engineer Representative of Kerala State Pollution Control Board 4 Sri. NS Murali Inspector General of Forests, NTCA, Regional Office(SZ) , Bengaluru OBSERVATIONS OF THE JOINT COMMITTEE:

Grievances in the application parawise and findings of the joint committee are as under. Para -1.

The Committee finds no scope for any comment on the statement made. Para 2 to 4 .•Comments of the Committee

These paras pertain to another issue and not within the scope of the order of the Hon'ble NGT for which the joint committee is appointed. The order is specific to the area in question ie., Foot Ball ground at Survey no. 67/1 of Periyar Village, Peerumedu Taluk as prayed by the petitioner.•Comments of the Committee

Para-5.

The committee could not find any document to support the allegation that the =Respondent authorities' had started to convert a portion of the Forest area to a Football ground and =respondent authorities' had deployed heavy machineries/earth movers to flatten the terrain. None of the respondents 1 to 7 have made any payment from govt. funds for the said works. Neither the complainant has submitted any document to prove that the said work was undertaken by any of the respondents.•Comments of the Committee

The averment that it is a foot ball ground is misleading. Neither the shape of the ground nor the area of the play ground meet the specifications of a football ground. The area of the ground as measured is 3694 sq mt. This area also includes part of the road connecting the Vanchivayl setlement passing through the ground.•

Paras-6 & 7.

The committee visited the site mentioned by the petitioner. It was found that the site is in the Vanchivayal Tribal Settlement of Oorali tribe located inside Periyar Tiger Reserve. The petitioner has not mentioned this fact anywhere in his petition.•Comments of the Committee

A reasonably flat area with roughly rectangular shape of about 0.37 Ha. with signs of new surface dressing was seen at the site. Dressing of earth has been done as indicated by the cut sl•opes and ground condition. The tribal residents of the settlement were present at the site and the committee interacted with Ajayan ,the Tribal Chieftain (moopan), and Geeta, the Chairperson of the Vanchivayal EDC. As per the Tribal Chieftain, the ground has been in existence at the site that was being used by the tribes of the settlement for festivals, as a play ground for children and for other communal gatherings. The said ground was slopping and during the mega floods of 2018 and 2019, it was damaged further by silt deposition. The Eco-development Committee of the settlement levelled the area using machineries like JCB that had come to the village for some other work and payment for the same will be made from the EDC funds collected by sale of pepper grown by the tribals. The payments are delayed due to the Covid 19 pandemic restrictions & yet to be made.

Considering the extent of the play ground, it is highly unlikely that the quantum of earth accumulated/moved during the levelling exercise would cause "severe damage' to the ecology of the forest as claimed by the petitioner.•

The committee examined the Google Earth images of the site and found that a cleared area has been in existence at the site in the image of 2012. The single tree in the middle of the ground was present in the same location during the inspection.•

The Deputy Director stated that the said ground is part and parcel of the Vanchivayal Tribal Settlement and it has been included in the Buffer Area of the Tiger Reserve in the notification of the Govt. of Kerala dated 06.04.2011. The committee perused the documents related to the notification of the Buffer Zone of the Periyar Tiger Reserve. Vanchivayal tribal settlement along with 400 meter distance from its periphery is included in the buffer zone of Periyar Tiger Reserve as indicated in the proposal initiated by the Field Director for notification of the PTR Buffer. The Deputy Director submitted a map showing the Tribal settlement along with 400 meter buffer area showing the location of the ground (Annexure- III). The extent of area included in the buffer zone was verified from the proposal of the Buffer Area sent by the Field Director (Annexure-IV), the proposal of the PCCF• The said recommendation of the Gram Sabha was submitted before the District Level Working Group for the Scheduled Tribes under the chairmanship of the District Collector. In its meeting held on 07.09.2018, the proposal for developing play ground for promoting the artistic and sports skills of the tribal children was recommended to the state. The minutes is attached as Annexure- II Translated part in English - Annexure - VIII • The minutes of the „Gram Sabha? (Oorukoottam) held on 25.04.2017 was produced by the Deputy Director PTR East, it has been recorded that ?It has been decided to do the maintenance work of playground currently used by the children of the colony? (Annexure- I). Translated part in English - Annexure - VIII • & Chief Wildlife Warden for declaration of the Buffer Zone of PTR sent to the government (Annexure V) as well as the Government Order dated 06.04.2011 published in the Government gazette (Annexure- VI). All maps annexed as Annexure VII In the Tiger Conservation Plan under the chapter 16 Management Strategies, the buffer zone has been categorised into three zone plans for management approaches. They are Eco-development zone, Piligrimage zone and Tourism Zone. In Para 16.2.1.1, it is stated that the eco-development zone consisits of entire buffer with areas of human settlement and their area of operation for livelihood. It extends to adjoining areas also. The zone also overlaps with piligrimage and tourism zones.•

In the Government Order declaring the Buffer Zone, it has been stated that ?to promote the co-existence between wildlife and human activities with due recognition of the livelihood, developmental, social and cultural rights of local people, the area of Periyar Wildlife Sanctuary kept out of the Critical Tiger Habitat is now declared as buffer area to the critical Tiger Habitat?. This makes it clear that repair works undertaken in an already existing community gathering place was an activity relating to the social and cultural rights of the scheduled tribes.•

* Section 38 V 4 (ii) of Wildlife Protection Act 1972 includes such areas of the Tiger Reserve as buffer which are ?buffer or peripheral area consisting of the area peripheral to critical tiger habitat or core area, identified and established in accordance with the provisions contained in Explanation

(i) above, where a lesser degree of habitat protection is required to ensure the integrity of the critical tiger habitat with adequate dispersal for tiger species, and which aim at promoting co- existence between wildlife and human activity with due recognition of the livelihood, developmental, social and cultural rights of the local people, wherein the limits of such areas are determined on the basis of scientific and objective criteria in consultation with the concerned Gram Sabha and an Expert Committee constituted for the purpose?.

Para no.8.

The committee referred to the Forest Rights Act, 2006 and as per•Comments of the Committee Section 6 (1)(a) - it is right of the community and it is the duty of the Grama Sabha to initiate the process of determining the nature and extent of Forest Rights.

The Grama Sabha (Oorukoottam) dated 25-04-2017 had recorded that ? decided to do maintenance work of playground currently used by children of the colony?. Annexure II ; Translated part in English - Annexure - VIII SUMMARY FINDINGS OF THE COMMITTEE:•

1. The petitioner has hidden the fact that the said ground is part and parcel of a Tribal settlement (Vanchivayal) located in the buffer zone of the Periyar Tiger Reserve.

2. A reasonably flat area with roughly rectangular shape of area 0.37 Ha. with signs of new surface dressing was seen at the site. Dressing of earth has been done as indicated by the cut slopes and ground condition.

3. The petitioner doesn?t mention that it was a work undertaken by the Eco Development Committee of the tribal settlement using their own funds. None of the respondents 1 to 7 have made any payment from govt. funds for the said works. The petitioner has not submitted any document to prove that the said work was undertaken by any of the respondents at their cost.

4. The play ground or the community gathering place was in existence at the site as evident from the Google Earth imageries and documents referred. The work done by the EDC is of repair and removal of debris brought by the floods. It is not a new construction as alleged by the petitioner.

5. The Chief Wildllife Warden, Kerala who is member of this committee has submitted regarding the action taken by the State Government that ?The entire issue was got enquired by Chief Wildlife Warden through Field Director (Project Tiger), Kottayam and a report on this subject was submitted to the Additional Chief Secretary, Forests & Wildlife Department, Govt. of Kerala vide WL5-225/2020 dated 27.02.2020. A copy of the same is enclosed. The matter was also reported to National Tiger Conservation Authority by the Chief Wildlife Warden on 27.02.2020?. A copy of the same is also enclosed (Both Marked as Annexure - IX)

6. The Deputy Field Director has not initiated any action against the EDC for use of machineries for the work.

7. Vanchivayal tribal settlement (in 3 bits) along with 400m from its periphery have been included in the buffer zone of Periyar Tiger Reserve as already stated. Based on the site inspection, available material, scrutiny of authenticated maps provided by the Periyar Tiger Reserve authority and google earth imageries, the said community gathering place / playground is located within the buffer zone along with a temple and an anganawadi.

8. During the course of inspection it is learnt that the petitioner is a habitual complainant and as per Silpa V. Kumar IFS, the Deputy Director of Periyar Tiger Reserve, Mr. Sajimon Salim had been haunting her by sexually toned posts in social media and a personal case of harassment has been filed by her against Mr. Sajimon Salim. (This point has been conncurred to by the KSPCB member on 21.07.2020 and dissented to on 22.07.2020) NOTE:

It is submitted that the consent of all the members has been obtained by circulation for this report.

To meet the ends of justice, the submissions made by Sajimon Salim along with the documents submitted by him via email on 14.06.2020 and Statement of Smt Silpa V Kumar, Deputy Director, Periyar Tiger Reserve dated 10.07.2020 are enclosed herewith, as Annexure X & XI Respectively, for kind perusal and orders as deemed fit & proper. ACKNOWLEDGEMENT:

The joint committee acknowledges the logistic support and inputs provided by the Kerala Forest Department to the committee during field visit.:

21. The report also consists of the notification making revised buffer zone, complaint filed by the applicant in O.A. No.29 of 2020, statement given by Smt. Silpa V Kumar, the then Deputy Director, (Project Tiger), Periyar East Division, Thekkady dated 10.07.2020 along with certain newspaper reports and whatsapp messages and also the communication between the Principal Conservator of Forest (Wildlife) and Chief Wildlife Warden to the Additional Chief Secretary, Forests & Wildlife Department, State of Kerala.

22. The applicant filed objection to the Joint Committee report and the Joint Committee has filed rejoinder to the objections filed by the applicant in O.A. No.29 of 2020 and the para wise reply was given which reads as follows:-

"REJOINDER BY THE JOINT COMMITTEE TO THE OBJECTIONS FILED BY THE APPLICANT ON THE REPORT OF THE JOINT COMMITTEE.

Para 1,2 & 3 - no comments Para 4.

At the outset the report is in the fashion of a counter affidavit filed by the Respondent, for the allegation of illegal construction of a football ground in the reserve forest. The response submitted, are para-wise remarks to the main application. Though there is clear violation of Kerala Forest Act, Forest Conservation Act, Wildlife Protection Act and The Forest Rights Act, the committee had miserably failed to note the serious violations and answer the question, whether the impugned construction was done after obtaining proper prior permissions, The report had failed to observe a direct answer to the question, whether the authorities who were bound to protect the Forest and Wildlife had failed in discharging their duties or not.

The Joint Committee has examined the facts that were set as its mandate by the Hon'ble Tribunal. The report was prepared after conducting field inspection, perusing all the relevant records and discussions with the concerned persons. There is no merit in the objection raised by the petitioner.

Para 5.

Before raising the objections to the said report, it is necessary to highlight the prima-facie observations found in the said report. A. Existence of a playground, of 3694 Sq' m (39,762 sq'ft), inside the reserve forest.

B. The impugned site was filled with-silt and natural resources, even during 2018 and 2019 C. New surface dressing, for setting up a playground, using heavy machineries which shall severely damage the ecology The Joint Committee has observed that ?Considering the extent of the play ground, it is highly unlikely that the quantum of earth accumulated/moved during the levelling exercise would cause ?severe damage' to the ecology of the forest?. Hence, there is no merit in the objections raised in this para.

Para 6.

It is erroneous to state that there is no football ground as per specification. The authorities should have understood that the allegation was not an existence of an international football| stadium. The report is well drafted, in a polished manner and projected the factual situation in a lighter way. The committee had failed to measure the quantum of earth moved and where the same was moved and sold. The question is unanswered in environmental aspect.

As mentioned clearly under points 2 & 4 of the summary of the report by the Joint Committee, the area of the ground where the surface restoration was done is clearly given. As per the findings of the Joint Committee, no earth is found moved and sold out. Neither the petitioner nor anyone else has given any proof showing that the earth was moved out or sold. There is no merit in the objections raised in this para.

Para 7.

The committee had failed to investigate or observe the-fact that a, three days football tournament was conducted in the impugned ground, illegally in December, 2019. Wherein the same was inaugurated by the Deputy Director using public addressing system, photo of inauguration by Deputy Director is herewith annexed as annexure no.1. The notice of football tournament is produced as annexure 2.

This is a fresh point that was not mentioned in the Original Application by the petitioner. However, the Government Order delineating the Buffer Zone of Periyar Tiger Reserve and the Micro Plan of Vanchivayal EDC have provided for the tribals to conduct cultural, customary and common gathering activities within the buffer area. Hence, there is no merit in the objections in the para.

Para 8.

Though the report is in a fashion of para-wise remarks, it has failed to disclose the observations of the vigilance report on the subject issue. Further the report had even surpassed the existence of the presence of a report of Conservator of Forest. I and E, Kottayam. The same is produced as annexure no. 3. The recommendation of the above report by The Additional PCCF Vigilance is produced as annexure 4.

The existence of any such report from any officer was not mentioned in the Original Application by the petitioner. Nor did the petitioner produce any such document before the Joint Committee. The petitioner is coming up with new documents which cannot be entertained and brought under the purview of the Joint Committee inspections later at this stage. It appears that the reports relied upon by the petitioner has been obtained through RTI. The State Information Commission (SIC) of Kerala has given an order No 110(6)/2020/SIC dated 23/6/2020 that it is legally invalid to obtain an enquiry report before it is finalized by the concerned authorities and SIC has given the orders for proceeding with departmental actions against the Conservator of Forest I&E, Kottayam for leaking out/ publishing the incomplete enquiry report. The order of State Information Commission is attached as annexure. In view of the above, it would be legally untenable to take cognizance of such reports and there is no merit in the objections raised by the petitioner.

Para 9.

The report had failed to observe the impact of the illegal ground construction, using heavy machineries. The photographs produced by the Committee, even, clearly highlights the construction, earth cutting and filling. The Committee had carefully used the words as "New surface dressing", to dilute the issue. No measurement of earth cutting and filling is taken. Instead of taking measurements and complete photographs and video, Google maps are prod uced to mask the illegalities visible with naked eyes. Many annexures are produced by the Committee but they cleverly avoided the Vigilance reports. Though the work was done without any authority and it is illegal, the authorities had later tried to regularize under developmental rights, which cannot be done post-facto. Further the rights under the section 3(2) of Scheduled Tribes and other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006, does not cover the nature of work executed, without permission.

The Joint Committee has examined the facts that were set as its mandate by the Hon'ble Tribunal. The report was prepared after conducting field inspection, perusing all the relevant records and discussions with the concerned persons. There is no merit in the objection raised by the petitioner.

Para 10.

Though the report says that the impugned area is in buffer zone, the committee had failed to produce the revenue records or Government Orders for the Core and Buffer Zone classification. The GO (P) No.7512007 F and WLD Thiruvananthapuram dated 31.12.2007, about Core area of PTR, copy is produced as annexure 5. The GO (P) No.18/2011 F and WLD Thiruvanantha puram dated 22.03.2011; about Buffer area of PTR, copy is produced annexure 6.

The Joint Committee has thoroughly verified the maps, cross checked imageries over various years, examined files & documents and cross verified all these with the final GOs. It has been established beyond doubt that the said area falls in the Buffer Zone of Periyar Tiger Reserve and it was annexed to the report for reference. Hence, the objections raised in this para are devoid of any merit.

Para 11.

The Annexure III, map, filed along the report is incorrect. The approved conservation Plan, Locations of Meteorological Stations, is produced as annexure 7. lt shall clearly shows the Va nchivayal Colony in three bits and the road is in the Buffer area and rest of the adjoining area as the Core area. Further the copy of the map from the approved Conservation Plan, Distribution of Vayals, is produced as annexure 8. Here also the Colony in three bits and the road are in the Buffer and adjoining areas are in the Core. The copy of the map from the approved Conservation Plan, core or Critical Tiger Habitat and Buffer Zone, is produced as annexure 9,Even this should show that the Colony are in three bits and the road are only in the Buffer and adjoining areas are in the Core.

The Joint Committee has thoroughly verified the maps, cross checked imageries over various years, examined files & documents and cross verified all these with the final GOs. It is established beyond any doubt that the said area falls in the Buffer Zone of Periyar Tiger Reserve. Findings of the committee mentioned in its report and reply to Paras 6&7 is reproduced here for reference The Deputy Director stated that the said ground is part and parcel of the Vanchivayal Tribal Settlement and it has been included in the Buffer Area of the Tiger Reserve in the notification of the Govt. of Kerala dated 06.04.2011. The committee perused the documents related to the notification of the Buffer Zone of the Periyar Tiger Reserve. Vanchivayal tribal settlement along with 400 meter distance from its periphery is included in the buffer zone of Periyar Tiger Reserve as indicated in the proposal initiated by the Field Director for notification of the PTR Buffer. The Deputy Director submitted a map showing the Tribal settlement along with 400 meter buffer area showing the location of the ground (Annexure- III). The extent of area included in the buffer zone was verified from the proposal of the Buffer Area sent by the Field Director (Annexure-IV), the proposal of the PCCF & Chief Wildlife Warden for declaration of the Buffer Zone of PTR sent to the government (Annexure V) as well as the Government Order dated 06.04.2011 Page 4 published in the Government gazette (Annexure- VI). All maps annexed as Annexure VII.

Hence, the objections raised by the petitioner are devoid of any merit.

Para 12.

It is necessary to say that, as per the notification the Vanchivayal colony and the approach road to the colony are in Buffer, but the ground in question is outside colony and is located in the Core area. Colony in three bits means that the land in between the bits are not part of colony. Individual rights are settled and the bits are well demarcated. They have no right in the adjoining Forest lands. The construction is, any day, a non permissible activity.

Same as response to the Para 11 above Para 13.

The report had failed to say to the Hon'ble tribunal that the Diversion of Forest land for developmental right should be as per, GOI letter dated May 18,2009 No.23011/15/2008-sG'll copy is produced as annexure

10. No procedures were followed by the authorities for establishment of the impugned ground and the report had failed to even observe that the Eco Development Committee (EDC), is not a competent user agency for submitting the Form A application. There is no quorum for the Grama sabha and is a clear indication that it is an afterthought. The copy of RTI application given to Vandiperiyar Panchayath Secretary is produced as annexure 11. Copy of reply to RTI application given by panchayath Secretary is produced as annexure 12. Further the photographs of the area before construction, during construction and after construction are produced as annexure 13 which clearly depicts the illegal construction, Upon perusing the documents, the Joint Committee has found that the process of claiming developmental right for the maintanence of the ooru maidanam was initiated since 2017. There is a well stipulated mechanism at Sub Divisional, District and State Level in this regard. Hence, the objections raised by the petitioner are devoid of any merit.

Para 14.

The report had failed to observe that the activity carried is in violation of Gol direction, Forest Act, Forest Conservation Act, Wildlife Protection Act and Forest Rights Act.

The Joint Committee has examined the facts that were set as its mandate by the Hon'ble Tribunal. The report was prepared after conducting field inspection, perusing all the relevant records and discussions with the concerned persons. There is no merit in the objection raised by the petitioner.

Para 15.

The committee failed to report the attack on a Beat Forest officer Sujith from vigilance wing who came for collecting information about the illegal construction by the colony members and staff of Periyar Tiger Reserve, there is a police case in this incident. FIR No.68,/2020 dated 26.01.2020 in Vandiperiyar police station. copy is produced as annexure 14. Moopan T. Ajayan along with 2 permanent watchers and 2 daily wages watchers of Periyar Tiger Reserve were arrested on 16.09.2020 by police and got remanded in Judicial custody. Further a false petition was given in vandiperiyar polite Station against Beat Forest officer Sujith by the colony Moopan T. Ajayan, FtR GGl2020 dated ZS|OL|2OIO and the case is proved false, Copy of report is produced as annexure 15. The very same T. Ajayan has filed an impleading petition in the oA under the instigation of delinquent officers. After filing the OA, Moopan Ajayan gave a false petition to DySp Kattappana against the applicant under the instigation of delinquent officers. The petition was enquired by police and found false.

This matter doesn't come under the purview of the mandate given by the Hon'ble Tribunal to Joint Committee.

Para 16.

lt is necessary to state that the land in question is well outside the demarcated colony and the committee is misleading the Tribunal by reporting that land outside colony is part of colony. The colony in three bits means in between area is not part of colony. Committee suppressed the fact that colony is demarcated with permanent cairns (Jundas). Further the said land is not a community Forest Resource as defined in section 2(a) of the Tribal Act, further they have not applied for the title of the said land in form C and obtained the title in Annexure lV of the Act.

The Joint Committee has thoroughly verified the maps, cross checked imageries over various years, examined files & documents and cross verified all these with the final GOs. It is established beyond any doubt that the said area falls in the Buffer Zone of Periyar Tiger Reserve and annexed to the report for reference. Hence, the objections raised in this para are devoid of any merit Para 17.

The committee had failed to answer, whether the Eco Development committee (EDC) had violated the Forest Act, Forest conservation Act, wildlife protection Act and Forest Rights Act. where a part of the Forest area was converted to a ground and foot ball tournament was conducted illegally. Neither the delinquent officers nor the committee members had submitted the Tribunal, about the importance of the impugned area, which is located inside the Forest.

The Joint Committee has thoroughly verified the maps, cross checked imageries over various years, examined files & documents and cross verified all these with the final GOs. It is established beyond any doubt that the said area falls in the Buffer Zone of Periyar Tiger Reserve. Moreover, the Wildlife (Protection) Act, 1972, the Forest Rights Act, 2006, the Government Order delineating the Buffer Zone of Periyar Tiger Reserve and the Micro Plan of Vanchivayal EDC have provided for the tribals to conduct cultural, customary and common gathering activities within the Buffer Zone. Hence, there is no merit in the objections raised in this para.

18. The committee had failed to say this Hon'ble Tribunal that no responsible officials had initiated any action for the gross violation of Act and Rules. The chief wildlife warden who is the statutory authority under Wildlife Protection Act had also been silent on the violation and now the officials are trying to protect themselves under the umbrella of The Joint Committee has thoroughly verified the maps, cross checked imageries over various years, examined files & documents and cross verified all these with the final GOs. There is no merit in the objections raised in this para.

19. The committee had blatantly tried to divert the subject by targeting the Applicant personally.

The committee had no intention of targeting the petitioner personally. One of the respondents Mrs.Silpa V Kumar, Deputy Director, Periyar Tiger Reserve (East) had submitted a written statement saying that the petitioner was harassing her with sexually over-toned remarks and court case filed by her against the petitioner in this regard is under trial with the court of law. As clearly mentioned in the report, this statement as submitted by her was included in the Report as natural justice of being heard. There is no merit in the objections raised by the petitioner in this regard.?

23. As directed by this Tribunal, while considering the I.A. No.16 of 2022 in O.A. No.188 of 2020 by order dated 22.03.2022, the PCCF and HoFF, State of Kerala has filed the report dated 08.04.2022 which reads as follows:-

“Report submitted before the Hon'ble National Green Tribunal, Southern Zone, Chennai by PCCF & HoFF, Kerala, the 3rd Respondent in OA No.29 of 2020 (SZ) On 22.03.2022, the Hon'ble National Green Tribunal, Southern Zone, Chennai in IA No.60 of 2022 in OA No.29 of 2020 (SZ) had ordered that "the 3rd Respondent / Principal Chief Conservator of Forests (HoFF) (Wildlife) is directed to file a further report or remarks on the report said to have been forwarded by the Additional and Principal Chief Forest Conservator (Vigilance & Forest Intelligence) dated 07.03.2020 regarding this aspect". It was also ordered that this report should be filed on or before 13.04.2022. Accordingly, the following is submitted;

1. On 23.01.2020, Secretary (Forests) forwarded to the office of PCCF & HoFF the grievance bearing No.P200100136 filed by Shri. Sajimon Salim in the Hon'ble Chief Minister's Grievance Portal (marked as Exhibit -- 1). On the same day it was forwarded to APCCF (V&FI) for report. The APCCF (V&FI) forwarded his report to my office on 07.03.2-020 after getting the report from CF (I&E), Kottayam.

On 24.01.2020, Secretary, Forests & Wildlife had forwarded to my office another grievance bearing No.G200102397 submitted in the Hon'ble Chief Minister's Grievance Portal by Shri.Sajimon Salim (marked as Exhibit-2). The same was forwarded to the APCCF (V&FI) on 28.01.2020. The report submitted by the APCCF (V&FI) on 07.03.2020 was common for both these grievances.

3. On 07.04.2020, the PCCF & HoFF submitted his remarks on the above grievances to the Additional Chief Secretary, Forests & Wildlife, Thiruvananthapuram (marked as Exhibit -- 3).

4. Shri. Sajimon Salim had filed another grievance bearing No.P200600235 on 18.06.2020, which was received in the office of PCCF & HoFF on 1 8 .06 . 2 0 2 0 ( m a r k e d a s E x h i b i t - 4 ) . S in c e t h i s g r i e v a n c e w a s in continuation of the other two grievances filed earlier on the same subject, a reply was sent to the Government on 30.07.2020 (marked as Exhibit -- 5).

5. All these grievances relate to one and the same issue, which in brief is stated in the grievance No.G200102397 which is as follows;

"During 2019December, 26, 27, 28, Periyar Tiger Reserve East Division organized a football tournament near Vanchivayal Tirbal Colony, which falls within core are of Periyar Tiger Reserve, East Division, Vallakkadavu Range and which lies in the Critical Tiger Habitat and Core area as per Periyar Tiger Conservation Plan. For conducting this tournament, PTR m a n a g e m e n t h a v e d o n e m a s s i v e e a r t h w o r k s a n d l a n d g r a d i n g t o reconfigure the topography of the site, to stabilize slopes. They used heavy earthwork machines like Hitachi & JCB to remove hills in this site. The restrictions put on construction activities in Periyar Tiger Reserve is violated and it would adversely affect the Biodiversity of the area. The recent floods have taught us too many lessons due to the man-made earth excavations. Aforesaid illegal actions violated all the conservation principals. The relevant documents are attached for ready reference. Hence I once again request you to initiate action against the management authorities of Periyar Tiger Reserve".

6. It is also seen that one Shri.James Mathew has filed a grievance before the MoEF& CC on 28.01.2020 on the same issue (marked as Exhibit -- 6), for which the Chief Wildlife Warden has given his remarks to the MoEF & CC on 27.02.2020. Copy of this report is given to PCCF & HoFF also (marked as Exhibit -- 7 & 8).

7. The report of APCCF (V&FI) dated 07.03.2020 was examined in this office.It was seen that this report was entirely based on the report of CF (I&E), Kottayam. The report has made a finding that existing ground (which is in the core area) but near the tribal colony (which is a buffer area) was developed as a football ground without securing appropriate approvals, the necessary procedures were not complied with and also that the above work has affected the environment and the wildlife. The report also makes the finding that the Deputy Director, PTR (E) Smt.Silpa V Kumar, Range Forest Officer Shri.C.Ajayan and the Assistant Field Director, Shri.Vipin Das have failed in their duties in this regard, while Shri.K.R.Anoop, Field Director, Kottayam has attempted to justify the above illegal action and therefore disciplinary action has to be taken against all these officers.

8. The report of Chief Wildlife Warden dated 27.02.2020 (Exhibit --7) makes the detailed analysis of the case and makes the findings that theplayground existed in the area long since, it is in the buffer zone and within the Vanchivayal Tribal Hamlet which consist of 3 smaller units. It also says thatthe Flied Director, Project Tiger has given the following clarifications.

"C. In response to Chief Wildlife Warden's queries seeking clarifications in the matter, the Field Director vide reference 4th (marked as Exhibit -- 9) above has further clarified as follows:

1. The site of the playground is a part of the Vanchivayal tribal colony.

2. In response to the query about taking up of the leveling work by Eco Development Committee and failure of the Range Forest Officer to stop the work in time, without getting sanction of the appropriate au th ority u n der F or est Ri gh ts Act, th e Fi eld Director has remarked that "it is only reasonable to presume that the Eco Development Committee has done the restoration of the maidanam that was customarily by them in good faith and there are no reason / evidences to believe any malafide intension in the actions of the Eco Development Committee members in carrying out the repair works and the process of diversion for non forestry use was under Forest Rights Act".

3. He further cites Section 10 (1) of the Forest Rights Act "No suit, prosecution or other legal proceeding shall lie against any officer or other employee of the Central Government or the State Government for anything which is in good faith done or intended to be done by or under this Act. (2). No suit or other legal proceeding shall lie against the Central Government or the State Government or any of its officers or other employees for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act. (3). No suit or other legal proceeding shall lie against any authority as referred to in Chapter IV including its Chairperson, members, member-secretary, officers and other employees for anything which is in good faith done or intended to be done under this Act".

9. The Chief Wildlife Warden further endorsed the observations of the Field Director and added the following;

D. The above observations of Field Director, Project Tiger appears to be a factual narration of the entire issue. There is no doubt that the user agency (Eco Development Committee, Vanchivayal), Range Forest Officer and Deputy Director, Periyar Tiger Reserve East Division have acted over zealously without completing the entire procedure of diversion of forest land under Forest Rights Act, 2006. The Vanchivayal is one of the best tribal settlements of Kerala in terms of social welfare, involvement of tribal community in forest protection and community empowerment. They have received recognition from State Government, when they were awarded 2nd b e s t p r i z e t r i b al c o l o n y f o r b e s t O r g a n i c F a r m in g i n St at e Agricultural Award during 2017. The element of good faith on the part of Eco Development Committee, Range Officer and Deputy Director, Periyar Tiger Reserve in completing the work without following procedures is a matter of subjectivity and opinion. But by seeing the track record of Vanchivayal tribal colony, the Range Officer and Deputy Director, the undersigned tends to believe that they can be given benefit of doubt of "acting in good faith". The undersigned also does not support the idea of holding foot ball tournaments inviting participants from outside. The local community resource has to be used only for the benefit of the local inhabitants".

10. In the meanwhile, Shri.Sajimon Salim had approached the Hon'ble National Green Tribunal and order was issued on 07.02.2020 constituting Joint Committee to inspect the area in question and for filing report.

11. The Report of APCCF (V&FI) dated 07.03.2020 was examined after taking note of the above report of the Chief Wildlife Warden and the orders of the Hon'ble Tribunal.Accordingly, report was submitted to ACS (Forests) on 07.04.2020 (Exhibit -- 3) with the following remarks; On enquiry it is found that the ground mentioned by the petitioner is located contiguous to the Vanchivayal Tribal Settlement in Vallakkadavu Range of Periyar Tiger Reserve, East Division. It is an existing ground used by the tribal communities of Vanchivayal Tribal Settlement. Floods of 2018 and 2019 brought in significant accumulation of debris which was removed and the ground was renovated by the Vanchivayal Tribal Eco Development Committee themselves. Following this, a football tournament involving teams from outside was also held here.

The legalities involved in the matter and the application of the Forest (Conservation) Act, 1980, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Right) Act, 2006 and the Wildlife (Protection) Act, 19 72 are under consideration before the National Green Tribunal, Chennai in an OA No.29/2020 filed by the same petitioner. In view of what is stated above and in view of the fact that, the matter is pending before the National Green Tribunal, no further action is pending at this point and the grievance may be disposed of accordingly.

12. This office came to the above conclusion on the basis of the following;

(a) No corruption of any kind was either alleged in the complaint or found in the enquiry.

(b) The report of APCCF (V&FI) was entirely based on the report of CF (I&E), Kottayam.

(c) The report of the CF (I&E) (as referred in the report of APCCF (V&FI)) has the finding that the Google Earth Map of the area showed the existence of the ground since long.

(d) The finding in the report that the football ground was in the core area of the Tiger Reserve was different from the report of the Chief Wildlife Warden dated 27.02.2020 to the effect that it is part of the tribal colony and in the buffer zone.

(e) The recommendation in the report of APCCF (V&FI) was hugely disproportionate to the alleged failure and was not found worth pursuing further.

(f) The allegation is primarily against the interpretation of the interplay between the conservation requirements and the developmental rights of t h e forest dependent tribals and the stand taken by the forest officers was not influenced by any extraneous consideration.

(g) Well before this report of APCCF (V&FI ), Shri.Sajimon Salim had approached the Hon'ble NGT and the Hon'ble Tribunal had already issued orders constituting Committee for site inspection and filing report.

13. Subsequently, on 09.12.2020 Smt. Silpa V. Kumar IFS, former Deputy Director, Periyar Tiger Reserve has addressed this office (marked as E xh ibi t - 10 ) requesting to initiate departmental enquiry against Shri. Madhu soodan an IFS (Rtd.) wh o was th e C F (I&E), K ottayam who enquired into the grievance raised by Shri. Sajimon Salim. Along with the letter she also had enclosed copy of the proceedings dated 23.06.2020 of the State Information Commission, Thiruvananthapuram. The complaint was filed by Smt. SilpaV. Kumar stating that the report of CF (I&E), Kottayam submitted to APCCF (V&FI) was found widely published in the News Papers, TV channel and Social M e d i a on 13.02.2020 and her enquiries revealed that the same was obtained by somebody under RTI Act and made available to the media. She also alleged over enthusiasm on the part of CF (I&E) who was the first Appellate Authority as he himself provided the copy of the report to the applicant bypassing the State Public Information Officer. In para 5 of the proceedings, the State Information Commission has made the following findings;

"On scrutinizing the Complaint Petition and connected documents, the Commission finds that the information sought by the applicant regarding the aforesaid enquiry was furnished by the 1st Appellate Authority in the office of the Conservator of Frosts (I&E), Kottayam, though the Senior Superintendent of that office as designated as th e State Public Information Officer. It is also seen that the above enquiry report had not reached its finality and Conservator of Forests (I&E) had only conducted the enquiry and furnished the report to the Additional Chief C o n s e r v a t o r o f Forests (Vigilance & Forest Intelligence), Thiruvananthapuram. Final decision on the above enquiry report was pending with the Additional Chief Conservator of Forests. As such, the information sought by the applicant under the RTI Act was covered under Section 8 (1) (h) of the RTI Act. The Commission finds that the 1st Appellate Authority dealt with the application under the RTI Act taking upon himself the role of the SPIO for reasons best known to him. It is not the case that the 1st Appellate Authority had taken upon himself the responsibility if furnishing the information sought by the applicant as the time frame prescribed under the Act for furnishing information was pending. In view of the above facts, the Commission can only conclude that the action on the part of the Conservator of Forests (I& E) in releasing the above information was rather extraordinary. Nevertheless, the RTI Act does not provide for any action against such aberrations. The Complaint Petitioner can approach her Departmental authorities for conducting a detailed enquiry into the matter and taking appropriate action''.

Further action in this regard is being pursued in this office.?

24. The applicant in O.A. No.188 of 2020 filed objection to the Joint Committee report denying the observations made and also contended that they have not considered about the necessity of permission to be obtained from the Central Government for conducting non-forest activity in the forest area.

25. Heard the learned counsel appearing for the applicant and respondents in both the cases.

26. The learned counsel appearing for the applicant in both the cases argued that the Google image produced along with the documents will go to show that they have enlarged the area for the purpose of expanding, though claimed to be an existing play ground to a larger extent and football tournament was conducted which is not a permissible activity even assuming that the Tribal Community has got any right under the Forest Rights Act, 2006. Further, even from the reports submitted by the various departments, it is clear that no permission was obtained from the authorities for the purpose of conducting a tournament and persons from outside were also participated in the tournament which is not permitted under the Act. No permission was obtained for adding area for this purpose as well. Further, even assuming that any forest land can be converted for providing facilities said to have to be enjoyed under the Forest Rights Act, 2006, permission from the Central Government is required for that purpose and without getting any permission, they are not entitled to carry out any development in that area. Admittedly, in this case, no such permission was obtained and the State Government is not the authority to grant such permission.

27. The learned counsel appearing for the applicant also relied on the decision of the Hon?ble Apex Court in K. Balakrishnan Nambiar & Ors. Vs. State of Karnataka & Ors.1, decision of the Hon?ble High Court of Madras in Ikkarai Boluvampatti Panchayat Vs. State of Tamil Nadu & Ors.2 and also the decision of the Hon?ble High Court of Kerala in Jairaj A.P. Vs. Chief Conservator of Forests (Wildlife) & Ors.3 in support of their case.

28. The applicant in O.A. No.188 of 2020 (SZ) has filed an interlocutory application [I.A. No.156 of 2022 (SZ)] to receive additional document to establish that heavy machineries were used for the purpose of removal of mud and the nature of publicity made for conducting football tournament and the presence of the people gathered at the time of tournament and also the presence of vehicles in that place. So, the interlocutory application [I.A. No.156 of 2022 (SZ)] is allowed and the document is received subject to its relevancy and admissibility can be considered by this Tribunal in this Judgment.

CDJ 2011 SC 499 = (2011) 5 SCC 353 AIR 2015 Mad 63 = (2015) KHC 1635 (1996) KHC 222 = AIR 1996 Ker. 362

29. The learned counsel appearing for the State of Kerala argued that it is part of the buffer zone of Vanchivayal Tribal Settlement Colony situated within the Periyar Tiger Reserve area and it is not within the core area and this area is being used as common place for gathering for conducting festivals, marriages, community gathering and playground for Anganvadi children and youth. During 2018 - 19 floods, huge sand deposit was made in that area and even during 2017, Gram Sabha of the Tribal Settlement Community had resolved to repair the playground and that was forwarded to the Eco- Development Committee and with the funds available with the committee, repair works were undertaken. No additional area has been added and no trees were cut for these purpose. Any irregularities committed therein is being enquired into by the Government level and appropriate action will be taken against the officials, if there is any serious irregularities against the provisions were committed by the officials.

30. The learned counsel appearing for the 8th respondent in O.A. No.29 of 2020 (SZ) argued that the alleged complaint which was produced along with the complaint said to have been on 13.01.2020 and the application was filed on 30.01.2020. But in the reference portion, he had referred to certain newspaper reports of Mangalam daily dated 22.01.2020 and Mathruboomi dated 22.01.2020 which is long after the date of complaint said to have been filed which was produced along with the application. Further, there was a correction made in the complaint which will go to show that the date „22.01.2020? was deliberately corrected as „13.01.2020? so as to make it appear that in spite of the complaint made long ago, no action was taken so as to create a cause of action for filing the application before this Tribunal. The Google images produced by the applicant and the Forest Department will go to show that their exists an open area within the tiger reserve which is being used by the Tribal people and they have only repaired and levelled the same and no additional area has been added and if any order has been passed affecting the right use this playground by the tribal people will amount to denial of their rights to be enjoyed as provided under the Forest Rights Act, 2006. So, the learned counsel prayed for accepting their contentions and passing appropriate orders.

31. We have considered the pleadings, submissions made by the learned counsel appearing for the parties including the written submissions submitted and also perused the documents available on record.

32. The common points that arose for consideration in both these cases are:-

A. Whether there was any violation of the forest laws [viz., Indian Forest Act, 1927, Kerala Forest Act, Forest (Conservation) Act, 1980 and Forest Rights Act, 2006] in establishing the playground in the Periyar Tiger Reserve area?

B. Whether the conduct of the tournament is a permissible activity and whether any sanction has been granted for that purpose in accordance with law? C. Whether any damage has been caused to the forest area on account of establishment of the football ground and if so, what is the quantum of compensation (if any) to be assessed?

D. What are all the further directions (if any) to be used applying the principles of =Precautionary Principle' and =Sustainable Development' so as to protect the rights of the tribal community as envisaged under the Forest Rights Act, 2006 and the right of the tribal communities which is being enjoyed by them, and also for protection of environment?

E. Relief and costs.

POINTS:-

33. Grievance in both these applications was that the 2nd respondent was converting a portion of the core area comprised in Sy. No.67/1 of Periyar Village, Peelamedu Taluk which is part of Periyar Tiger Reserve into a football ground, for which, heavy machineries like JCB, earth movers etc. were used and number of trees were felled for this purpose without obtaining necessary permission from the authorities. Further, it was converted into a football ground and football tournament was conducted between 26.12.2019 and 28.12.2019 and huge gatherings were permitted to witness the football tournament and it was done under the supervision of the then Deputy Director, (Project Tiger), Periyar East Division and it will have great impact on the wildlife in the Periyar Tiger Reserve. Though representations were made, no action was taken is the complaint made by the applicant in both the cases.

34. This was denied by the official respondents and according to them, this area was used as playground (Maidanam) being used by the people residing in tribal settlement in Periyar Tiger Reserve as part of their community right for conducting festivals, gatherings, meetings and also for playing by the children and youth in the settlement area. It was also contended by them that as per the buffer zone notification issued in respect of Periyar Tiger Reserve, this area will fall under the buffer zone and not in the core zone and in 2017, a Gram Sabha had made a request for maintenance of this playground and it was approved by the Eco-Development Committee and forwarded to the District Collector and the District Collector also recommended for the same and it is on that basis, the Director, Periyar Tiger Reserve had granted permission.

35. According to the official respondents, the area covered by this is 0.3711 Ha. which was also mentioned in the counter affidavit filed by the official respondents, including the PCCF & HoFF, Kerala that it is a permissible activity and though there were some irregularities in granting permission, it was done in good faith for the development of the Tribal community and they are protected under Section 10 of the Forest Rights Act, 2006 [Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006]. Further, no Government fund was utilized for this purpose and the fund of the Eco-Development Committee was utilized for this purpose. It was also mentioned in the reports that during 2018-19 flood, large scale soil deposits were made and there was erosion caused causing channel and in order to remove and level the area, the JCB that was brought for some other purpose in the area was utilized. On the basis of the complaint made by the applicants in both the cases, vigilance enquiry was conducted and they have found some irregularities. But when it was enquired by the higher authorities, it was found that certain findings of the vigilance officer was not based on actual materials, but he had collected the materials from an officer of the Vigilance, Kottayam. So, according to them, certain facts were suppressed by the applicant in both the cases and there was no violation committed by the authorities.

36. In order to ascertain the real facts, this Tribunal had appointed a Joint Committee comprising of (i) District Collector - Idukki District,

(ii) Principal Conservator of Forest (Wildlife) and Chief Wildlife Warden, Kerala, (iii) an Officer from National Tiger Conservation Authority, Government of India, Regional Office, Bangalore and (iv) Kerala State Pollution Control Board to inspect the area in question to consider the allegations made in the application and directed them to submit a factual as well as action taken report, if there is any violation found.

37. Pursuant to the direction of the Tribunal, the Joint Committee has filed the report, wherein they have given the summary of the findings which reads as follows:-

"SUMMARY FINDINGS OF THE COMMITTEE:

1. The petitioner has hidden the fact that the said ground is part and parcel of a Tribal settlement (Vanchivayal) located in the buffer zone of the Periyar Tiger Reserve.

2. A reasonably flat area with roughly rectangular shape of area 0.37 Ha. with signs of new surface dressing was seen at the site. Dressing of earth has been done as indicated by the cut slopes and ground condition.

3. The petitioner doesn?t mention that it was a work undertaken by the Eco Development Committee of the tribal settlement using their own funds. None of the respondents 1 to 7 have made any payment from govt. funds for the said works. The petitioner has not submitted any document to prove that the said work was undertaken by any of the respondents at their cost.

4. The play ground or the community gathering place was in existence at the site as evident from the Google Earth imageries and documents referred. The work done by the EDC is of repair and removal of debris brought by the floods. It is not a new construction as alleged by the petitioner.

5. The Chief Wildllife Warden, Kerala who is member of this committee has submitted regarding the action taken by the State Government that ?The entire issue was got enquired by Chief Wildlife Warden through Field Director (Project Tiger), Kottayam and a report on this subject was submitted to the Additional Chief Secretary, Forests & Wildlife Department, Govt. of Kerala vide WL5-225/2020 dated 27.02.2020. A copy of the same is enclosed. The matter was also reported to National Tiger Conservation Authority by the Chief Wildlife Warden on 27.02.2020?. A copy of the same is also enclosed (Both Marked as Annexure - IX)

6. The Deputy Field Director has not initiated any action against the EDC for use of machineries for the work.

7. Vanchivayal tribal settlement (in 3 bits) along with 400m from its periphery have been included in the buffer zone of Periyar Tiger Reserve as already stated. Based on the site inspection, available material, scrutiny of authenticated maps provided by the Periyar Tiger Reserve authority and google earth imageries, the said community gathering place / playground is located within the buffer zone along with a temple and an anganawadi.

8. During the course of inspection it is learnt that the petitioner is a habitual complainant and as per Silpa V. Kumar IFS, the Deputy Director of Periyar Tiger Reserve, Mr. Sajimon Salim had been haunting her by sexually toned posts in social media and a personal case of harassment has been filed by her against Mr. Sajimon Salim. (This point has been conncurred to by the KSPCB member on 21.07.2020 and dissented to on 22.07.2020)?

38. The applicant in O.A. No.29 of 2020 filed objection to the same along with the certain documents.

39. The Joint Committee was directed to submit a further report as rejoinder to the objection filed by the applicant in O.A. No.29 of 2020.

40. It is seen from the Joint Committee report and also statement filed by the official respondents that even in the Micro Plan prepared in respect of the Tiger Reserve, the report of the Moopan will go to show that the existence of playground (Maidanam). Further, it is seen from the report submitted by the Principal Conservator of Forest (Wildlife) & Chief Wildlife Warden to the Additional Chief Secretary, Forest & Wildlife, Kerala that the social resources land use map of the village in micro plan prepared on 17.03.2006, this location (where the earth work was done) is shown as maidanam (playground). The extent of the area which was used as playground was not indicated.

41. Further, it is seen from the report submitted by Mr. Surendrakumar, IFS, PCCF (Wildlife) & Chief Wildlife Warden, Kerala dated 27.02.2020 to the Deputy Director General (Forest), National Tiger Conservation Authority, MoEF&CC, Government of India that in Periyar Tiger Reserve, an area of 0.37 Ha. was found to have been freshly levelled in the Vanchivayal Tribal Settlement measured using GPS. The work was carried out by the Eco-Development Committee during last fortnight December 2019. During the process, no trees have been cut and levelling has been carried out using earthmovers machine. In the social resources land use map of village Micro Plan prepared on 17.03.2006, this location is shown as maidanam. The historical Google earth image from 2007 onwards shows the site as devoid of tree cover. The Gram Saba (Oorukootam) in its meeting dated 25.04.2017 has recorded the minutes that "it has been decided to undertake the maintenance of the playground which is presently used by the children of Vanchivayal Colony". The district working group held under the Chairmanship of the District Collector, Idukki has mentioned in its minutes dated 07.09.2018 that IDDP Officer has submitted a proposal for preparation of playground for Vanchivayal Colony and the working group had decided to recommend to the State Level Working Group. The general body of the Vanchivayal Eco-Development Committee, in its meeting dated 14.11.2019 attended by 61 of 76 members demanded that the levelling of existing playground and the Deputy Director, Project Tiger Reserve, East Division has agreed for their demand. Later, the Eco- Development Committee of Vanchivayal Tribal Colony submitted an application in Form - A under Section 3 (2) of the Forest Rights Act, 2006 on 14.01.2020. The Range Officer, Vallakkadavu had processed the application and reported that Scheduled Tribe of Vanchivayal colony have been demanding repair and maintenance of playground and common gathering place of the settlement for long time. The general body meeting of the Eco-Development Committee was held on 14.11.2019 and it has been decided to repair the gathering the place, by removing the mud accumulated during the flood and levelling without cutting trees. The Range Officer in his report dated 14.01.2020 also reported that the said repair works have already been executed by the Eco-Development Committee. The Deputy Director, Periyar Tiger Reserve, East Division issued a proceedings letter dated 14.01.2020 allowing the demand of the Eco-Development Committee under Section 3 (2) of the Forest Rights Act, 2006 after placing and record the following facts:-

“Individual rights under FRA have been given to the Vanchivayal tribal settlement. The common properties / places available in the settlement are a Temple, Anganvady and a play ground. The play ground is being traditionally used by the tribes for public gatherings, festivals and for playing. It has been a long pending demand of the tribals to do the repair and maintenance of the ground.

Presently, there are 127 youths and children in the settlement. Due to the location of the village deep inside the forests, the absence of proper entertainment and physical activities, the chances of the tribal youth falling for illegal activities is very high. There is a public outrage against the Government for not appending to the demands of tribal people".

42. It was mentioned in the report of the Field Director (Project Tiger), Kottayyam which was extracted in this report that there is a deviation from the laid out procedure. However, since the Gram Saba has already approved and recommended the said repair and maintenance of the gathering place cum playground, on 25.04.2017, the work done by the Eco-Development Committee can be viewed as an action done in good faith as provided under Section 10(3) of the Forest Rights Act, 2006. But the vigilance wing of the Forest Department had filed a different report which was relied on by the applicant produced along with the objection, wherein it was mentioned that there was no permission obtained for the purpose of conducting football tournament and huge gatherings were collected using vehicles which may have impact on the wildlife in the Periyar Tiger Reserve.

43. Quite unfortunately, nothing was mentioned about these aspects as to whether any permission was granted for the purpose of conducting a football tournament in the area and whether it is a permissible activity required protection under the Forest Rights Act, 2006. Nothing was mentioned about these aspects by the Joint Committee in the report as well as the rejoinder filed by them and the report of the Principal Chief Conservator of Forest (HoFF) & Chief Wildlife Warden.

44. It is also seen from the documents produced by the applicant which he obtained under the Right to Information Act from the Secretary of the Vanjiyur Grama Panchayat within those jurisdiction this area falls to the effect that no Gram Sabha was conducted as per rules and no resolution was passed by the Gram Sabha as required under the rules. But, on the other hand, the same Vanjiyur Grama Panchayat Secretary had signed the minutes of the alleged Gram Sabha which was attended by 21 persons, whether it is proper or not is also a matter to be gone into by the authorities which they have not enquired into. Further, in the guidelines given by the MoEF&CC for recognition of rights of the Scheduled Tribes in the forest area as required under Section 3 (2) also provides for certain procedure and Coram of the committee and the members who can constitute the Gram Sabha and the required numbers of persons to be included in the Gram Sabha etc. In such circumstances, it appears that some irregularities might have been committed and non-permissible activity has been carried out, but we are not going into the question as to whether it will have any impact etc. especially when the forest right of the Scheduled Tribes under the Act have to be considered by the mechanism provided under the Act.

45. There is no dispute regarding the fact that the JCB was used for the purpose of removal of debris and mud accumulated during flood happened in 2018-19 and the JCB which was brought for the purpose of repairing and maintaining the pond inside the settlement area was used for this purpose. The fact that football tournament conducted was also not disputed by the official respondents. So, under such circumstances, the document produced along with I.A. No.156 of 2022 (SZ) in O.A. No.188 of 2020 (SZ) is not of much relevance for the purpose of considering the question involved in this case, as these facts were in a way admitted by the official respondents in their counter statement as well.

46. Further, in the decision relied on by the learned counsel appearing for the applicant viz., K. Balakrishnan Nambiar & Ors. Vs. State of Karnataka & Ors.4, it has been observed that when the lease for quarry has to be renewed or not in the forest area, it is for the Forest Department to consider under Section 2 of the Forest (Conservation) Act, 1980 and without that merely because it was renewed by the Mining Department is not sufficient to carry out the mining activity and rejection of permission by the Forest Department was upheld by the Hon?ble Apex Court. Further, in the decision Ikkarai Boluvampatti Panchayat Vs. State of Tamil Nadu & Ors.5 and Jairaj A.P. Vs. Chief Conservator of Forests (Wildlife) & Ors. 6, the respective Hon?ble High Courts held that any conversion of forest land for non-forest purpose can be granted only by the Central Government and not by the State Government and the order passed by the State Government for some purpose in the forest land was set aside by the Hon?ble High Court leav

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ing open the liberty of the parties to approach the Central Government for that purpose. Even, under Section 3 (2) of the Forest Rights Act, 2006, for conversion of forest, permission from the Central Government is required. 47. In view of the detailed discussions and observations made above, we feel that both the applications can be disposed of by giving following directions:- A. The Ministry of Environment, Forest & Climate Change (MoEF&CC) - New Delhi is directed to consider the issue involves in this matter and also consider the following aspects: CDJ 2011 SC 499 = (2011) 5 SCC 353 AIR 2015 Mad 63 = (2015) KHC 1635 (1996) KHC 222 = AIR 1996 Ker. 362 Whether it is a permissible activity and if so, whether it can be approved at the State Level and if not, what is the procedure to be followed for post-facto approval, if permissible under law.? Whether the act committed by the Forest Officials, including the Eco-Development Committee is proper and in accordance with the provisions of the Forest Rights Act, 2006 and Rules framed there under and the guidelines issued by the MoEF?&CC; Whether the repair and formation of the football ground can be treated as a forest right under? Section 3 (2) of the Forest Rights Act, 2006; Whether a football tournament inviting persons other than the tribal people of the settlement can be conducted in the Tiger Reserve area and whether it will have any impact on the wildlife;? If there is any violation of grave nature not falling under Section 10 of the Forest Rights Act, 2006, then what is the nature of disciplinary action (if any) to be taken under the department level against the officers who are involved in the same.? If there is irregularities in the procedure followed, how this can be regularized, if it is permissible under the Forest Rights Act, 2006 and Rules framed there under and ? Whether the playground is falling under the buffer zone or core area of the Periyar Tiger Reserve and if it is in the core area or in the buffer zone, whether such activities are permissible and if so, what is the procedure to be followed for converting that area as a playground of formal nature by spending amount and levelling the area and whether such a procedure has been followed in this case; ? If any permission is required for that purpose, whether such permissions have been obtained and if not, what is the further action to be taken in this regard; ? B. The MoEF&CC - New Delhi is directed to issue necessary direction on the basis of the findings on the above aspects to the Chief Secretary, State of Kerala for necessary further action. C. The Chief Secretary to Government, State of Kerala is also directed to produce all the documents related to the repair and maintenance of the alleged playground, counter filed by them and various reports filed as directed by this Tribunal in these cases and the enquiry report and connected documents in respect of allegations made in the complaint received from the applicant through the Vigilance Department and consequential enquiry conducted at the department level, Joint Committee report submitted in both these cases with statement of facts leading to the filing those case and the defence taken by the Government in this regard to the MoEF&CC - New Delhi for their consideration within a period of 1 (One) month. D. On receipt of those documents, the MoEF&CC - New Delhi is directed to peruse the entire documents and take decision on the questions referred to by this Tribunal in this Judgment and take appropriate decision and inform the Chief Secretary at the earliest possible time at any rate not later than 4 (Four) months from the date of receipt of the documents from the Chief Secretary as directed. E. On receipt of the report or directions from the MoEF&CC - New Delhi based on the enquiry conducted as directed above, the Chief Secretary to Government, State of Kerala is directed to take necessary steps to regularize the act committed, if it is suggested as permissible activity by the MoEF&CC by making necessary application for this purpose under Section 3 (2) of the Forest Rights Act, 2006 or act according to the directions issued by the MoEF&CC in this regard. F. If there is any violation found and any action suggested by the MoEF&CC against the erring officials, then the Chief Secretary to Government, State of Kerala in coordination with the Principal Chief Conservator of Forest (HoFF) & Chief Wildlife Warden, State of Kerala is directed to take appropriate action against those erring officials in accordance with law. G. We deprecate the attitude of the applicant in both the cases in not mentioning the entire facts in the application, including the existence of tribal settlement and the vacant area, as seen from the Google image etc. The applicant in both the cases in future must be careful while approaching the Court/Tribunal and they should undertake proper enquiry and mention all the material facts without suppressing anything in the application so as to enable the Court/Tribunal to evaluate the situation in a right perspective. We also found that there is some force in the submission made by the learned counsel appearing for the 8th respondent in O.A. No.29 of 2020 (SZ) that there was some correction made by the applicant in the representation said to have been submitted and produced along with the application [O.A. No.29 of 2020 (SZ)] and that is per se clear as well and the same is also deprecated/viewed seriously. The applicant is warned not to repeat such corrections/acts in future. 48. The points are answered accordingly. 49. In the result, both these original applications are allowed in part and disposed with the following directions:- (i) The Ministry of Environment, Forest & Climate Change (MoEF&CC) - New Delhi is directed to consider the issue involves in this matter and also consider the following aspects: a. Whether it is a permissible activity and if so, whether it can be approved at the State Level and if not, what is the procedure to be followed for post-facto approval, if permissible under law. b. Whether the act committed by the Forest Officials, including the Eco-Development Committee is proper and in accordance with the provisions of the Forest Rights Act, 2006 and Rules framed there under and the guidelines issued by the MoEF&CC; c. Whether the repair and formation of the football ground can be treated as a forest right under Section 3 (2) of the Forest Rights Act, 2006; d. Whether a football tournament inviting persons other than the tribal people of the settlement can be conducted in the Tiger Reserve area and whether it will have any impact on the wildlife; e. If any permission is required for that purpose, whether such permissions have been obtained and if not, what is the further action to be taken in this regard; f. Whether the playground is falling under the buffer zone or core area of the Periyar Tiger Reserve and if it is in the core area or in the buffer zone, whether such activities are permissible and if so, what is the procedure to be followed for converting that area as a playground of formal nature by spending amount and levelling the area and whether such a procedure has been followed in this case; g. If there is irregularities in the procedure followed, how this can be regularized, if it is permissible under the Forest Rights Act, 2006 and Rules framed there under and h. If there is any violation of grave nature not falling under Section 10 of the Forest Rights Act, 2006, then what is the nature of disciplinary action (if any) to be taken under the department level against the officers who are involved in the same. (ii) The MoEF&CC - New Delhi is directed to issue necessary direction on the basis of the findings on the above aspects to the Chief Secretary, State of Kerala for necessary further action. (iii) The Chief Secretary to Government, State of Kerala is also directed to produce all the documents related to the repair and maintenance of the alleged playground, counter filed by them and various reports filed as directed by this Tribunal in these cases and the enquiry report and connected documents in respect of allegations made in the complaint received from the applicant through the Vigilance Department and consequential enquiry conducted at the department level, Joint Committee report submitted in both these cases with statement of facts leading to the filing those case and the defence taken by the Government in this regard to the MoEF&CC - New Delhi for their consideration within a period of 1 (One) month. (iv) On receipt of those documents, the MoEF&CC - New Delhi is directed to peruse the entire documents and take decision on the questions referred to by this Tribunal in this Judgment and take appropriate decision and inform the Chief Secretary at the earliest possible time at any rate not later than 4 (Four) months from the date of receipt of the documents from the Chief Secretary as directed. (v) On receipt of the report or directions from the MoEF&CC - New Delhi based on the enquiry conducted as directed above, the Chief Secretary to Government, State of Kerala is directed to take necessary steps to regularize the act committed, if it is suggested as permissible activity by the MoEF&CC by making necessary application for this purpose under Section 3 (2) of the Forest Rights Act, 2006 or act according to the directions issued by the MoEF&CC in this regard. (vi) If there is any violation found and any action suggested by the MoEF&CC against the erring officials, then the Chief Secretary to Government, State of Kerala in coordination with the Principal Chief Conservator of Forest (HoFF) & Chief Wildlife Warden, State of Kerala is directed to take appropriate action against those erring officials in accordance with law. (vii) We deprecate the attitude of the applicant in both the cases in not mentioning the entire facts in the application, including the existence of tribal settlement and the vacant area, as seen from the Google image etc. The applicant in both the cases in future must be careful while approaching the Court/Tribunal and they should undertake proper enquiry and mention all the material facts without suppressing anything in the application so as to enable the Court/Tribunal to evaluate the situation in a right perspective. We also found that there is some force in the submission made by the learned counsel appearing for the 8th respondent in O.A. No.29 of 2020 (SZ) that there was some correction made by the applicant in the representation said to have been submitted and produced along with the application [O.A. No.29 of 2020 (SZ)] and that is per se clear as well and the same is also deprecated/viewed seriously. The applicant is warned not to repeat such corrections/acts in future. (viii) Considering the circumstances, parties are directed to bear their respective costs in the respective applications. (ix) The Registry is directed to communicate this order to the official respondents, including the MoEF&CC - New Delhi immediately for their information and compliance of directions. (x) The MoEF&CC - New Delhi and the Chief Secretary to Government, State of Kerala are directed to file a report of compliance of directions issued by this Tribunal within a period of 6 (Six) months. (xi) As and when the reports are filed, the Registry is directed to place the same before the Bench for consideration and also for issuing necessary directions (if any) required in this regard. 50. With the above observations and directions, both these applications are disposed of.
O R