The Forest (Conservation) Act prohibits the use of forest land for commercial purposes without prior approval, reaffirming restrictions imposed on non-forest activities.

JUDGMENT

Soumen Sen, C.J.

W.A.No.1207 of 2019 is arising out of the judgment dated 01.04.2019 passed by the learned Single Judge in a writ petition, wherein the petitioner challenged the decisions of the respondent authorities restraining him from using the Idamalayar Irrigation Project (IIP) Canal Bund Road for non-forest purposes. The petitioner contended that he has no other access to his property except through the said road.

2. In fact, three writ petitions were heard and by a common judgment dated 01.04.2019, they were disposed of directing the 4^th respondent, namely Divisional Forest Officer to take up, consider and pass appropriate orders on Ext.P7 representation preferred by the petitioner in W.P.(C)No.31390 of 2017 within a time frame. All other writ petitions namely W.P(C)Nos.26306, 32033, 39136 of 2017 and 36926 of 2018 were dismissed.

3. The present appellant is the writ petitioner in W.P(C)No.36926 of 2018. In view of the judgment passed by co- ordinate Bench presided over by the Hon’ble the Chief Justice in W.A.No.1144 of 2019 filed against the judgment in W.P(C)No.39136 of 2017, this appeal also requires to be dismissed. The present appellant/petitioner claimed that he owns property which is used for storing construction equipments and supplies. The land in question was initially a Forest Land. It is contended that the said land was handed over to the Irrigation Department for the purpose of construction of the IIP Project. It is also contended that there is is no question of using the road for any commercial purpose and the road is sought to be used for transporting construction equipments and supplies stored in her property.

4. The learned counsel for the appellant has relied upon the provisions of Section 24 of the Kerala Forest Act and would contend that where the road was being used by the appellant/petitioner for access to her property, such continued use is liable to be permitted. The breaking up or clearing of forest lands, as provided in Section 2 of the Act would arise only at the time of clearing for the forest land and when the pathway is initially formed. The user of the pathway by the residents of the area for access to their properties would not amount to use for non-forest purpose, as provided in . It has been strenuously contended that by using or permitting construction of IIP, the nature and character of the property has changed and land can be used for such non forest purpose as provided under of the Forest Conservation Act, 1980. This issue was answered by the co-ordinate Bench in W.A.No.1144 of 2019 dated 12.04.2019, wherein paragraph 4 and 5 reads as follows:

“4. The learned Judge however noted that the area was forest land and was handed over to the Irrigation Department, for the construction of the Idamalayar Irrigation Project (IIP). Such permission granted to the Irrigation Department never envisaged the use of the road for commercial purpose, as is sought to be done by the petitioner to deliver his plant products to the end users. The court was disinclined to accept that the petitioner is entitled to use the road as a matter of right, regardless for the purpose for which, the forest land is being used. Moreover, alternate means of access to the property was also noticed by the court. Since the appellant’s use of the Canal Bund Road was admittedly for a commercial purpose relatable to his Tar Mixing Plant, his cases were found devoid of merit and the same were dismissed.

5. In the above context, the permission granted by the Ministry of Environment and Forests on 10.7.1997 (Annexure A3(a)) shows that approval was granted under the Forest (Conservation) Act , 1980, for diversion of 115.047 hectares of fo