Kerala High Court
Ouseph Kuriakose vs The Divisional Forest Officer on 11 January, 2019
Author: Anu Sivaraman
Bench: Anu Sivaraman
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY ,THE 11TH DAY OF JANUARY 2019 / 21ST POUSHA, 1940
WP(C).No. 181 of 2017
PETITIONER:
OUSEPH KURIAKOSE
AGED 79 YEARS,
S/O. OUSEPH, MARACHERYPUTHENPURAYIL HOUSE
KUTHUKUZHI P.O,
KOTHAMANGALAM,
ERNAKULAM, PIN 686 691
BY ADV. SRI.MATHEW KURIAKOSE
RESPONDENTS:
1 THE DIVISIONAL FOREST OFFICER
KOTHAMANGALAM, KOTHAMANGALAM P.O
ERNAKULAM DT 686 691
2 THE FOREST RANGE OFFICER
KOTHAMANGALAM, KOTHAKAMANGALAM P.O
ERNAKULAM DT 686 691
BY ADV. GOVERNMENT PLEADER
OTHER PRESENT:
SPL.GP SANDESH RAJA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
3.01.2019, THE COURT ON 11.01.2019 DELIVERED THE FOLLOWING:
W.P.(C).No.181/17
2
JUDGMENT
1. This writ petition is filed seeking the following reliefs:-
"i) Call for the records leading to Ext.P6 order with Ext.P7(a) reasons and P13 order.
ii)Issue a writ of Certiorari or any other writ order or direction quashing Ext.P6 order with Ext.P7(a) reasons and P13 order.
iii)Declare that the petitioner is entitled to cut and remove the trees as mentioned in Ext.P6 application.
iv)Permit the petitioner to cut and remove the trees as mentioned in Ext.P6 application.
v)Issue a writ of mandamus or any other writ order or direction commanding the respondent No.2 consider and pass orders afresh allowing Ext.P6 application filed by the petitioner to cut and remove the trees as mentioned thereon."
2. Heard Sri.Joseph Markos, learned Senior counsel for the petitioner and Sri. Sandesh Raja, the learned Special Government Pleader for the Forest.
3. The petitioner has preferred an application for cutting and removing of certain trees standing in the petitioner's property on 5.7.2014. By Exhibit P6, the application was rejected by the Forest Range Officer. The reasons for the rejection are W.P.(C).No.181/17 3 communicated to the petitioner by Exhibit P7(a). As many as seven reasons are stated for the rejection of the application, it is stated that three of the trees which are mentioned in the application are Thembavu trees and thus the specifications given in the application are incorrect. It is stated that one Thambakom tree is more than 150 years old and that the trees mentioned therein are not standing in the positions shown in the survey sketch in respect of LA17/92 in Survey No.732/A It is further stated that it is not the trees for which the tree value has been paid by the assignee in LA 17/92 that are being sought to be cut and removed and the application is, therefore, irregular. It is further stated that the trees are situated near the boundary of the reserve forest and the cutting and removal of the same will result in soil erosion and other environmental problems. Reason 7 provides that the Kerala Forest (Preservation, Reproduction and Disposal of Trees and Timber Belonging to Government but Grown on Lands in the Occupation of Private Persons) Rules, 1975 and the Kerala Preservation of Trees and Regulation of Cultivation on Hills Area Rules, 1983 will be violated, if permission is granted. Though Exhibit P9 appeal has been preferred by the petitioner against the rejection, the appeal has W.P.(C).No.181/17 4 been dismissed by Exhibit P13 proceedings on the ground that the appeal is preferred beyond the time limit prescribed.
4. The learned Senior Counsel appearing for the petitioner submits that the reasons stated in the order of rejection are completely untenable in terms of the provisions of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 ('2005 Act' for short) and the Rules provided thereunder. It is submitted that the properties in question are patta lands and non-forest lands covered by undisputed title deeds and that the provisions applicable are the provisions of the 2005 Act. Section 6 of the Act provides for the right of owners to cut and remove trees standing on forest lands. Section 6(3) provides for notification of area of non-forest land where trees may not be cut without permission. It is stated that the provisos to Sub-section 3 are to the effect that permission is required for cutting and removing of any specified tree from notified non-forest areas. It is submitted that the area in question being a notified area, the petitioner had submitted appropriate applications for cutting and removal of trees and that such permission was liable to be granted, unless there is any valid reason for rejecting the same. W.P.(C).No.181/17 5 It is stated that the provisions of the Act and Rules would make it clear that the Act itself is intended to facilitate the cutting and removing of trees from private lands and planting of new trees to generate timber etc. It is further submitted that the the Kerala Forest (Preservation, Reproduction and Disposal of Trees and Timber Belonging to Government but Grown on Lands in the Occupation of Private Persons) Rules, 1975 has no application in the instant case and the said rules have elapsed due to non- notification.
5. A detailed counter affidavit has been placed on record by the respondents. It is contended therein that the petitioner is not a small holder as defined in Section 2(d)(b) of the 2005 Act and that he is in possession of 01.3497 hectares of land comprised in Survey Nos.732/1A, 732/1A/53, 725/4/6, 725/1/5, 725/4/6 of Neeriamangalam village as evident from Exhibit P1. It is stated that the land is lying as a single block. It is stated that the petitioner is in possession of 32.12 Ares of land by virtue of pattayam No.LA17/92 and the right over all trees within the grant and specified in the schedule vest with the Government. It is submitted that the trees mentioned in the list appended to the W.P.(C).No.181/17 6 pattayam for which tree value had been paid by the petitioner were not found on the land except one Thambakam tree. It is stated in paragraph 9 of the counter affidavit as follows:-
"It is submitted that as per section 6(3) of the Act, the holders of land in notified villages are prohibited from felling trees except on the ground that they are dangerous to life and property or are wind fallen. The above notification issued under Section 6(3) of the Act with a view to protect ecology and also in public interest. Since the total extent of land is 1.497 ha., the petitioner is prohibited from felling trees from the land. And since the extent of land is more than 1 ha. , he is not entitled to the concern envisaged in the Act for small holders."
6. Exhibit R1(a) notification is produced and it is contended that the said notification specifically provides that no tree standing in any non-forest area specified shall be cut, uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes danger to life or property or is wind-fallen.
7. It is stated that the species and measurements of the trees now found on the land vary considerably from the measurements furnished by the Tahasildar, Kothamangalam and the trees for which tree value was paid are no longer available on the property. It is submitted that the application preferred by the W.P.(C).No.181/17 7 petitioner was rejected on valid grounds and that no appeal was preferred within the thirty days as provided in the rules and therefore the appeal was also not considered.
8. I have considered the contentions advanced on either side. The Kerala Preservation of Trees Act, 1986 governed the grant of permission for cutting of trees till the 2005 Act came into force. The said Act imposed stringent restrictions on the cutting of the specified trees as defined there under. The Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 was enacted by the legislature, in it's wisdom, relaxing the restrictions as to cutting of trees in non notified areas.
9. The Act and Rules provide a detailed procedure with regard to the cutting and removal of trees. The purpose of the Act as stated is as follows:-
"An Act to promote cultivation of trees in non-forest areas of the State, in order to increase green cover, preserve bio-diversity and arrest soil erosion and to increase availability of timber and bamboo for industry."W.P.(C).No.181/17 8
Section 6(1) & (3) of the Act reads as follows:-
"6. Right of owners to cut and remove trees in non- notified areas in non-forest land. - (1) Notwithstanding anything contained in any other law for the time being in force and subject to the other provisions of this Act, every owner of non-forest land in a non-notified area shall have the right to cut and transport any tree, other than sandalwood tree, standing on his land;
(2).......
(3) The Government may, with a view to preserving tree growth in the interest of protecting the ecology or in public interest by notification in the Gazette direct that no tree standing in any area of non-forest land specified in the notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes a danger to life or property or is wind fallen:
..........................
Provided also that the owners other than small holders in an area notified under this sub-section may cut and remove any tree other than sandalwood tree only with the prior permission in writing of the Authorised Officer and such permission shall not be required for the cutting and removal of trees mentioned in the Schedule. Provided also that such permission mentioned in the second and third provisos shall not be refused by the Authorised Officer if the tree constitutes a danger to life or property or is wind-fallen: Note:- For the purpose of this sub-section all the mangrove areas or cardamom or coffee plantations shall be deemed to be notified areas."W.P.(C).No.181/17 9
Rule 5 of the Kerala Promotion of Trees Growth in Non-Forest Areas Rules, 2011 provides as under:-
"5.Conditions for granting permission for cutting of trees under sub-section (3) of section 6 of the Act- In deciding whether permission under sub-section (3) of section 6 of the Act, may be issued to fell, uproot or prune specified tree, the Authorised Officer shall have due regard to the following matters, namely:-
(i)Plantations of fast growing species like Eucalyptus, Casuarina, Bamboo, Reed etc., shall be allowed to be cut after they attain a minimum age of five years.
(ii)plantations of other forest tree species shall be allowed be cut or fallen after they attain a minimum age of ten years.
(iii) thinning in plantations of forest tree species shall be allowed as per the silvicultural requirements of the species:
iv) rosewood trees shall be allowed to be cut or fallen after attaining a minimum girth of 150 cms. at 1.4 meters above ground level.
v)teak trees wherever grown, other than in plantations, shall be allowed to be cut or fallen after attaining a minimum girth of 60 cms at 1.4 meters above ground level;
vi)trees of other forest trees species wherever grown, other than in plantations shall be allowed to be cut after attaining a minimum girth of 75 cms at 1.4 meters above ground level.
vii)all dead trees may be permitted to be cut or converted.
viii)all trees which constitute a danger to life or property, buildings, telephone lines, electric lines or any other structure shall be permitted to be felled irrespective of their girth or maturity.W.P.(C).No.181/17 10
ix)all trees causing obstruction to any permanent building or to the formation of any public road shall be permitted to be felled.
x) pruning of trees required for agricultural operations shall be allowed in deserving cases on condition that the girth of the branch to be cut shall not exceed thirty cms. at the biggest end and the main stem of the trees shall not be damaged during lopping or pruning.
xi)twice the number of trees of the same species or those of other suitable species shall be required to be regenerated by the applicant.
xii)the permission for felling shall not be refused if the tree constitutes a danger to life or property or if the trees is wind fallen or for the bonafide construction of a residential house thereon."
10.The intention of the legislature as discernible from the substantial provisions of the Statute was to remove the stringent restrictions imposed on the cutting and removal of trees standing on non forest lands. A reading of the provisions of Section 6 of the Act with Rule 5 of the Kerala Promotion of Tree Growth in Non-Forest Areas Rules, 2011 would clearly indicate that permission for cutting and removing of trees is to be considered even in case the holdings are not small holdings as defined in the Act. The contention of the respondents that it is only where the tree poses danger to life and property that it can be cut is not supported by the provisions of the Act and the Rules. The said condition in the notification cannot be relied upon by the W.P.(C).No.181/17 11 respondents in view of the proviso to the substantial provision as contained in Section 6(3) of the Act.
11.A reading of Section 6 of the Act would make it clear that an application for permission to cut and remove any tree from notified areas and permission to cut and remove trees in non notified areas are dealt with in a different and distinct manner. In respect of the specified trees in notified areas, what is contemplated is a prior permission. The permission is liable to be granted in case the condition prescribed in Rule 5 are met. The question whether the tree sought to be cut and removed is a tree for which value has been paid at the time of assignment is not an issue which can be considered at this late date in terms of the Act and the Rules. The further contention of the respondents that provisions of other Rules would be violated is also not a relevant consideration which can be raised to reject the claim of the petitioner, since Section 6 contains a non obstante clause. I am of the opinion that this Court cannot go beyond the clear words of the Statute to discern any such further powers on the authorised officers on the basis of what is stated in the preamble or the objects and reasons to the Act. In the absence of specific W.P.(C).No.181/17 12 provisions granting powers to the Authorised Officer to make inspections as to the desirability of the cutting of the trees, I am of the opinion that the rejection on the ground as mentioned in Exhibits P7 and P7(a) is untenable. I am of the opinion that request for prior permission is to be considered by the authorised officer in accordance with the provisions of the Act and the Rules.
12.The impugned orders are, therefore, set aside. There will be a direction to the respondents to reconsider the application preferred by the petitioner to cut and remove the trees in the light of the provisions of the Act and the Rules. It is made clear that the identity of the trees on the pattayam land shall not be taken as a ground to refuse permission.
The writ petition is ordered accordingly.
Sd/-
Anu Sivaraman, Judge sj W.P.(C).No.181/17 13 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE BASIC TAX RECEIPT DATED 11-08-2016 ISSUED BY THE NERIAMANGALAM VILLAGE OFFICE TO THE PE[TITIONER EXHIBIT P2 TRUE COPY OF THE SALE DEED DATED 31ST DAY OF THE MONTH OF MEENAM IN 1117 M.E OF KOTHAMANGALAM S.R.O IN FAVOUR OF THE FATHER OF THE PETITIONER EXHIBIT P3 TRUE COPY OF THE SETTLEMENT DEED NO 2779/1962 OF S.R.O KOTHAMANGALAM TO THE PETITIONER EXHIBIT P4 TRUE COPY OF THE PATTAYAM NO LA 17/92 DATED 20-07-1992 ISSUED BY THE THAHSILDAR, KOTHAMANGALAM EXHIBIT P5 TRUE COPY OF THE CHALAN RECEIPT NO 84 DATED 17-07-1992 ISSUED BY THE SUB TREASURY, KOTHAMANGALAM TO THE PETITIONER EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 05- 07-2014 AND ORDER DATED 11-08-2014 PASSED BY THE 2ND RESPONDENT WITH ORDER DATED 11-08-2014 PASSED BY THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF THE COMMUNICATION DATED 11-08-2014 EXHIBIT P7(A) TRUE COPY OF THE REASONS IN SUPPORT OF EXT.P6 ORDER FOR REJECTING THE APPLICATION FOR CUTTING THE TREES EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 17-11-2014 ISSUED BY THE ADDITIONAL TAHSILDAR, KOTHAMANGALAM TO THE 2ND RESPONDENT W.P.(C).No.181/17 14 EXHIBIT P9 TRUE COPY OF THE APPEAL DATED 08-10- 2014 AS PER SECTION 6(8) OF THE ACT 2005 BEFORE THE 1ST RESPONDENT EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 08-06-2015 ISSUED BY THE 1ST RESPONDENT TO THE DISTRICT COLLECTOR, ERNAKULAM EXHIBIT P11 TRUE COPY OF THE REPORT DATED 19-01- 2016 SUBMITTED BY THE ADDL. TAHSILDAR, KOTHAMANGALAM TO THE DISTRICT COLLECTOR, ERNAKULAM EXHIBIT P12 TRUE COPY OF THE REPLY DATED 29-03-2016 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM TO THE 1ST RESPONDENT EXHIBIT P13 TRUE COPY OF THE ORDER DATED 10-06-2016 PASSED BY THE 1ST RESPONDENT REJECTING EXT. P9 APPEAL EXHIBIT P14 TRUE COPY OF THE EXPLANATORY NOTE OF EXT.R1(B) NOTIFICATION DATED 4.10.2006. EXHIBIT P15 TRUE COPY OF THE REPORT DATED 14.2.2013 ISSUED BY THE TAHASILDAR KOTHAKAMANGALAM TO THE SECOND RESPONDENT.
EXHIBIT P16 TRUE COPY OF THE SKETCHES (TWO IN NUMBER) DATED 12.2.2014 PREPARED BY THE VILLAGE OFFICER, NERIAMANGALAM.
True copy PS to Judge