Kerala High Court
Rajan Gopalan vs The Divisional Forest Officer on 15 December, 2020
Author: P.V.Asha
Bench: P.V.Asha
W.P(c) No.23242 of 2020-P 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942
WP(C).No.23242 OF 2020(E)
PETITIONERS:
1 RAJAN GOPALAN
AGED 61 YEARS
S/O. GOPALAN, CHETTUNKAL HOUSE, PATTACKAL,
MALAYINCHI P.O., UDUMBANNOOR, THODUPUZHA,
IDUKKI-685595.
2 GOPALAPILLA P.K.
AGED 69 YEARS
S/O. KRISHNAPILLA, PADIKUZHA HOUSE, MALAYINCHI,
UDUMBANNOOR, IDUKKI-685595.
3 P.K. SASI,
AGED 60 YEARS
S/O. KRISHNAN, PADICKAPARAYIL, MALAYINCHI,
UDUMBANNOOR, IDUKKI-685595.
4 KRISHNANKUTTY,
AGED 67 YEARS
S/O. ITTIYATHI, PONNEDUTHUPARA HOUSE, MALAYINCHI,
UDUMBANNOOR, IDUKKI-685595.
5 SANTHOSHKUMAR K.M.
AGED 54 YEARS
S/O. MADHAVAN, NEDUMTHARAKIZHAKKETHILKOVOOR,
MALAYINCHI, UDUMBANNOOR, IDUKKI-685595.
6 GEORGE, S/O.ABRAHAM,
AGED 56 YEARS
THADATHIL HOUSE, MALAYINCHI, UDUMBANNOOR,
IDUKKI-685595.
7 K.R. SOBHA,
AGED 45 YEARS
W/O. BIJU, PONNEDATHUPARAYIL HOUSE, MALAYINCHI,
UDUMBANNOOR, IDUKKI-685595.
BY ADV. SHRI.M.C.JOHN
W.P(c) No.23242 of 2020-P 2
RESPONDENTS:
1 THE DIVISIONAL FOREST OFFICER,
KOTHAMANGALAM DIVISION, KOTHAMANGALAM, ERNAKULAM
DISTRICT-686666.
2 THE RANGE FOREST OFFICER,
THODUPUZHA RANGE, THODUPUZHA,
IDUKKI DISTRICT-685594.
3 THE SECTION FORESTER,
PERINGASSERY SECTION, PERINGASSERRY,
THODUPUZHA-685594.
SPL.GOVERNMENT PLEADER (FOREST) SRI.SANDESH RAJA.K.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
08.12.2020, THE COURT ON 15.12.2020 DELIVERED THE FOLLOWING:
W.P(c) No.23242 of 2020-P 3
P.V.ASHA, J.
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W.P(c) No.23242 of 2020-P
---------------------------------------------
Dated this the 15th day of December, 2020
JUDGMENT
The petitioners seek a direction to the 2 nd respondent to pass orders on their applications Exts.P4 and P5 by which they have requested for permission for cutting and removing the trees mentioned in their applications.
2. The petitioners claim that they are agriculturists, who are in possession and enjoyment of small extents of land in Karimannoor Desom, Udumbannoor Village in Idukki district. It is stated that by virtue of Ext.P1 order of assignment issued on 22.06.2012, the 1st petitioner is in ownership and possession of .42.80 Hectare of purayidam in Karimannoor Desam. It is stated that no trees are reserved in Ext.P1 order of assignment. The 2 nd petitioner claimed to be in ownership and possession of 1.2175 hectare of purayidam in the same desam in another survey no, by virtue of Ext.P2 Patta issued on 04.12.2013, in which 9 trees are mentioned in the schedule. Along with I.A.No.1/2020, they have produced Ext.P8 patta issued to the 1st petitioner on 20.07.2012 in respect of the . 42.82 hectare purayidam. The conditions fixed in Ext.P2 patta issued to the 2 nd petitioner is also produced as Ext.P9 along with this I.A. Both these Pattas Exts.P2 and P8 are issued under the Kerala Land Assignment (Regularisation of W.P(c) No.23242 of 2020-P 4 Occupations of Forest Land prior to 1.1.1977) Special Rules, 1993 (hereinafter referred to as "Special Rules 1993."). In the case of the other petitioners, it is stated that they are waiting for the next pattayamela for getting Pattas after submitting applications for assignment of the properties in their enjoyment. The petitioners claimed that they are entitled to cut and remove the trees in the properties in their possession especially when those trees are not reserved in the patta and therefore cutting permits are not required even if the trees were existing at the time of issuing patta or planted subsequently. According to them, they only want to cut the trees like jack wood, Anjili and Mango trees. It is also their case that respondents 1 and 2 had informed them that no cutting permit is required for such trees; but the 3rd respondent is insisting the same illegally. Producing Ext.P4 application submitted by petitioners 1 to 4 and Ext.P5 application submitted by petitioners 5 to 7, the petitioners seek a direction to the respondents to give them permission for cutting the trees. The petitioners claim that as per G.O(P) No.60/2017/Rev. dt.17.8.2017, it is not necessary to observe the condition no.1 in the pattas, which relates to cutting of those trees which are not covered by the patta. Relying on Ext.P6 circular issued by the Government on 11.3.2020 they claim that all trees except sandalwood can be cut and removed from the patta land. They have also relied on Ext.P7 order dated 21.8.2020 in W.P(c).No.13678/2020, claiming that the Division Bench of this Court, has vacated the stay order, in tune with the Government Order.
3. In the statement filed by the 2nd respondent it is stated that the W.P(c) No.23242 of 2020-P 5 petitioners are not entitled to permission for cutting the trees. It is stated that patta is issued only to petitioners 1 and 2; those pattas are issued under the Special Rules, 1993 where the first condition is that full right over all the forest trees specified in the schedule would vest with the Forest Department and the assignee is bound to take care of all such trees standing in the land as well as those which came into existence subsequent to the assignment. It is stated that the other 5 petitioners do not have any patta with respect to their possessed land which are in 'Thodupuzha reserve' having the status of reserve forest and permission cannot be granted for cutting or removing trees from reserve forest. It is stated that the G.O(P) No.60/2017/Rev. dt.17.8.2017 as well as Ext.P6 circular are issued with respect to those pattas issued under Land Assignment Rules, 1964, where the condition no.1 is not similar to those in Exts.P8 or P9 patta issued to the petitioners. It is stated that the condition no.1 in the pattas issued under the 1964 rules regarding restriction for the cutting of trees and those in the pattas issued under the Special Rules, 1993 are distinct and different. The pattas referred to in Ext.P3 is only with respect to pattas issued under Kerala Land Assignment Rules, 1964. It is stated that Ext.P10 order issued on 24.10.2020, produced along with the I.A, is also applicable only to the patta issued under the Rules of 1964. It is also stated that the restriction withdrawn by G.O(P) No.60/2017/Rev. dt.17.8.2017 was stayed by this Court in W.P(c).No.13678/2020 on 8.7.2020 and it was modified later. According to the 2nd respondent, cutting of trees from the patta land Ext.P1/P8 and Ext.P2 and possessed reserve forest without prior permission is an W.P(c) No.23242 of 2020-P 6 offence under the Kerala Forest Act, 1961. In case the trees are in a dangerous position, the petitioners can submit a danger petition before the Divisional Forest Officer, Kothamangalam. It is stated that the forest officials are duty bound to conserve the forest wealth in the country in accordance with the existing rules. Therefore, it is stated that Exts.P6 and P7 applications are to be dismissed.
4. The learned counsel for the petitioners, relying on the judgment of this Court in Ouseph Kuriakose v. Divisional Forest Officer: 2020 (6) KLT 419 argued that the denial of permission based on their applications is illegal. It was argued that the parent enactment based on which the patta was issued to the petitioners is also the Kerala Land Assignment Rules and therefore permission should be granted to petitioners in the light of the circular Ext P6, order Ext P10 and the interim order passed by the Division Bench.
5. On the other hand, Sri. Sandesh Raja, the learned Special Government Pleader, relying on the judgment in One Earth One Life v. Ministry of Environment and Forests & Ors.: 2018 (4) KHC 827 argued that the patta issued to the petitioners are under the Special Rules 1993 and the petitioners are governed by the said rules as well as the conditions imposed in the patta. It was argued that the Special Rules, 1993, under which pattas are issued to petitioners 1 and 2, are having the concurrence from the Central Govt. unlike other pattas issued under the 1964 rules and therefore the petitioners are bound to observe those conditions. The conditions imposed in Ext.P8 and Ext.P2/P9 pattas are in accordance with the conditions in the schedule to the Special Rules, 1993. It was also pointed out that W.P(c) No.23242 of 2020-P 7 the judgment relied on by the learned Counsel for the petitioners has no application to the present case.
6. Having heard both sides, it is necessary to have a look at the relevant provisions in the Special Rules 1993, the condition No.1 in its schedule as well as the condition no.1 in the Pattas Exts.P2 and P8.
7. Rule 3 of the Special Rules provides that the lands under those rules may be assigned for the purpose of personal cultivation or for house sites or for shops sites. As per Rule 5, the land sought for assignment should have been under occupation of the assignee or is predecessor/successor in interest prior to 1.1.1977. Rule 8 provides for the procedure for assignment; Rule 9 provides that patta shall be issued in form no.6; Rule 12 provides for land value to be realised from the assignee; Rule 13 deals with trees which read as follows:
"13. Trees:-- The trees are defined in the Kerala Preservation of Trees Act, 1986 (Act 35 of 1986) as described in the Patta issued to the assignee shall be accounted for and preserved by the Forest Department. The assignee shall afford all facilities to the officers of Government in the matter of inspecting the land periodically for checking the trees and for removing them if necessary."
The conditions under which the patta is to be issued are stipulated in form No.6. Condition no.1 thereof reads as follows:
"1. The full right over all the forest trees stipulated to be accountable within the grant and notified in the schedule vests with the Forest Department of Government and the assignee is bound to take care of all such trees standing on the land at the time of assignment or that may come into existence subsequent to it".
The conditions contained in Exts.P8 and P9 are also the same as the aforesaid condition in the Form no.6. As pointed by Sri. Sandesh Raja, the following W.P(c) No.23242 of 2020-P 8 observations of a Division Bench of this Court in the judgment in One Earth One Life v. Ministry of Environment and Forests & Ors., in a Writ Petition challenging quarrying/mining operations carried out in land covered by patta granted under the 1993 Special Rules, are relevant:
"The State Government has enacted the Kerala Forest (Prohibition of Felling of Standing Trees of Land Temporarily or Permanently Assigned) Rules 1995 (hereinafter referred to as "the 1995 Rules"), Assignment Special Rules,1993 and also the Preservation of Trees Act, 1986 and this Court while referring to these enactments, in The Divisional Forest Officer, Malayattoor and Others v. P.M.Jalal and another, reported in (2015 (4) KLT 566 = 2015 (5) KHC 468), indicated that the three statutes operate for three different objects and purpose. For the land covered under the Special Assignment Rules, 1993 both the Preservation of Trees Act and also the 1995 Rules apply, with respect to the trees covered thereby. Therefore, the assignee is bound by the terms of the patta and is also required by law to preserve the trees mentioned in the patta notwithstanding that they may not be covered by the Preservation of Trees Act, since cutting of trees would result in penal consequences for the violator, under the Kerala Forest Act. The Court observed that the objective of these enactments is for the preservation of ecological balance and protection of soil, which in turn will have direct bearing on the sustenance and protection of environment and forest wealth .xxxxxx"
The Division Bench has, referring to the judgment of the Full bench of this Court in Nature Lovers Movement v. State of Kerala : 2000 KHC 847: ILR 2020(1) Ker 677, where the entire proceedings which led to the issuance of the Special Rules 1993, observed that the consent of the Central Government was given to those rules on the undertaking of the State Government that the status of the land would continue to be as Reserved Forest. In para.31, this Court held as follows:
"31. The above assignment document makes it abundantly clear that full right over all the trees continue to vest in the Forest Department and the assignee is made bound to protect not only the standing trees but also those that may come up subsequently. Thus an element of protection of standing trees and afforestation is inherent in the Patta. In addition, the Government retained for itself the rights in the roads, paths, rivers, streams and channels running through or bounding the land. This makes it amply clear that assignment of the land was not intended to destroy the trees but their protection and further growth was envisaged, even while quarrying activities was not ruled out altogether."W.P(c) No.23242 of 2020-P 9
Rule 13 read with the conditions provided in form 6 of the Special Rule 1993 as well as the interpretation given to those provisions by this Court as well as the Special Rules would show that the assignees covered by Exts.P1 and P2 read with Exts.P8 and P9 are bound to protect and preserve the trees which are not only mentioned in the schedule to the Patta but also those which would come into existence/planted subsequently.
8. In the said circumstances the contention of Sri. M.C.John, the learned Counsel for the petitioner, that the parent enactment of all the Pattas is Kerala Land Assignment Rules and therefore the relaxations/concessions given in circular Ext.P6 or the Government order Ext.P10 would apply, cannot be accepted.
9. It is seen that the judgment in Ouseph Kuriakose's case relied on by Sri. M.C. John, the learned Counsel for the petitioners, was rendered in a totally different circumstance. Though the issue is related to permission for cutting trees, the claim was raised under Kerala Promotion of Trees in Non Forest Areas Act, 2005 where the proviso to Section 6 was interpreted. The patta referred to therein is not stated to have been issued under the 1993 Special Rules. Moreover, the petitioners do not have a case that their land is in non-forest area as they have produced the pattas issued under the Special Rules. They are governed by 1993 Special Rules and are bound to protect the trees in the land covered by the patta, as held in the judgment in One Earth One Life v. Ministry of Environment and Forests & Ors.: 2018(4)KHC 827. All the trees in the land covered by the pattas W.P(c) No.23242 of 2020-P 10 issued to them continue to vest in the Forest Department. The petitioners, who are assigned the land, are bound to take care of all the trees standing in the land. As protection is envisaged not only to the trees that were mentioned in the schedule, but to those trees to be planted subsequently also, the fact that there are no trees included in the schedule of patta issued to the 1 st petitioner cannot help him. The petitioners, who do not have patta also, cannot have any right to claim permission to cut any tree. However, as pointed out by the respondents, they can move the DFO, in a case where any of the trees are in a dangerous position. The Government orders/circulars or even the interim order passed by this Court would not help the petitioners as none of those orders relate to patta granted under 1993 Rules. It is also pertinent to note that even in the order Ext.P7 passed in W.P. (C).No.13678/2020, on 21.08.2020, the Division Bench has, while modifying the stay order, directed the authorities to ascertain the genuineness of the pattas issued, based on which the farmers claim possession and the private respondents would be bound to ensure that the conditions contained in the patta are followed. Learned Government Pleader points out that the said interim order continues to be in force and therefore even in the case of pattas governed by the 1964 order, the assignees are bound to adhere to the conditions in the patta. At any rate, the petitioners cannot have a case that they are not bound by the Special Rules 1993. The State Government which got approval for those rules from the Central Government based on the undertaking to preserve the status of reserve forest cannot dilute the said undertaking by issuing circulars and orders like Exts.P6 or P10. Therefore, W.P(c) No.23242 of 2020-P 11 the contentions raised by the petitioners cannot be accepted.
The Writ Petition is accordingly dismissed.
Sd/- (P.V.ASHA, JUDGE) rtr/ W.P(c) No.23242 of 2020-P 12 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE ORDER OF ASSIGNMENT LA
168/2012 DATED 22/06/2012 ISSUED TO FIRST
PETITIONER.
EXHIBIT P2 TRUE COPY OF PATTA DATED 04/12/2013 ISSUED
TO SECOND PETITIONER.
EXHIBIT P3 TRUE COPY OF THE CHALAN RECEIPT DATED
01/11/2013 OF 3RD PETITIONER.
EXHIBIT P4 TRUE COPY OF APPLICATIONS (4 NOS.) DATED
16/10/2020 SUBMITTED BY PETITIONERS 1 TO 4
BEFORE THE SECOND RESPONDENT.
EXHIBIT P4(A) TRUE COPY OF THE ACKNOWLEDGMENTS DATED
16/10/2020 ISSUED BY SECOND RESPONDENT.
EXHIBIT P5 TRUE COPY OF APPLICATIONS (3 NOS) DATED
20/10/2020 SUBMITTED BY PETITIONERS 5-7 TO
THE SECOND RESPONDENT.
EXHIBIT P5(A) TRUE COPIES OF ACKNOWLEDGMENTS DATED
20/10/2020 ISSUED BY SECOND RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE GOVERNMENT CIRCULAR NO.U3-
187/2019/REV. DATED 11/03/2020.
EXHIBIT P6 (A) TRUE COPY OF THE NEWS REPORT DATED
23/03/2020 IN MALAYALA MANORAMA DAILY.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 13/08/2020 IN
WPC NO.13678/2020 OF THE HON'BLE COURT.
EXHIBIT P8 TRUE COPY OF THE PATTA NO.178/12 DATED
20/07/2020 ISSUED TO THE 1ST PETITIONER.
EXHIBIT P9 TRUE COPY OF THE SECOND PAGE OF EXT.P2
PATTA DT.4.12.2013 ISSUED TO 2ND
PETITIONER.
EXHIBIT P10 TRUE COPY OF THE G.O.(MS).NO.261/2020/Rev.
DATED 24/10/2020 BY THE GOVERNMENT.