Kerala High Court
Jose vs State Of Kerala on 6 February, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
C.R
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 06TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947
WP(C).No.16102 OF 2019(K)
PETITIONER:
JOSE
AGED 56 YEARS
S/O. JOSEPH, MANNATHANICKAL HOUSE, PIRAKUNNAM KARA,
NERIAMANGALAM VILLAGE, KOTHAMANGALAM TALUK,
THALAKKODE P.O.-686 693 MOB.9633131405.
BY ADVS.
SRI.V.RAJENDRAN (PERUMBAVOOR)
SRI.N.RAJESH
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF
FOREST, SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE RANGE FOREST OFFICER
RANGE OFFICE, NERIAMANGALAM-686 693.
3 TAHSILDAR
KOTHAMANGALAM TALUK OFFICE,
KOTHAMANGALAM-686 691.
R1-3 BY GOVERNMENT PLEADER
SPL. GP. FOREST. SANDESH RAJA
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.16102 OF 2019(K)
2
C.R
JUDGMENT
This writ petition is filed seeking the following prayers:-
"i. To call for the records leading to Exhibit P6 order and quash the same by issuing a writ of certiorari. ii. To issue a writ of mandamus or any other appropriate writ, order or direction, directing the 2nd respondent to accord sanction to the petitioner to cut and remove and transport the two teak trees standing in his property having an extent of 28.32 ares situated in Sy.Nos.495, 398/246 and 1398/247 of Neriamangalam Village within a time fixed by this Hon'ble Court."
2. Heard the learned counsel for the petitioner and the learned Special Government Pleader appearing for the respondents.
3. The petitioner is the owner of 28.32 ares of property in Neriamangalam Village, which was purchased by Ext.P1 sale deed. The property was part of a larger extent of property comprised in Survey Nos.495/1, 398/246 and 1398/247 of Neriamangalam Village. The said property was assigned by Ext.P3 patta dated 9.1.1963 to one Mundan Kannan. It is stated that Ext.P5 Mahazar prepared while WP(C).No.16102 OF 2019(K) 3 handing over the property on the basis of Ext.P3 Patta would show that there were no teak trees standing on the property at the time of assignment. It is submitted that after purchasing of the property by Ext.P1 the petitioner has planted trees in the property and that there are two old teak trees in the property having more than 60 inch girth. It is submitted that the petitioner had submitted an application for cutting the said trees under Section 6 of the Kerala Promotion of Tree Growth in Non Forest Areas Act, 2005 (hereinafter referred to as "2005 Act") on the basis of his title over the land in question. However, the request of the petitioner had been rejected relying on the condition contained in the Patta.
4. The learned counsel for the petitioner relies on the non-obstante clause in Section 6 of the 2005 Act to contend that the condition in the Patta cannot stand in the way of the petitioner being permitted to cut and remove the trees in question since the trees were not reserved in the Patta and since it is not in dispute that the trees were planted by the petitioner himself. It is submitted by the learned counsel for WP(C).No.16102 OF 2019(K) 4 the petitioner that the 2005 Act is enacted with the definite purpose of promoting of cultivation of trees in non-forest areas to increase the green cover and that the provision for permitting the cutting and removal of trees is intended to make the planting of trees economically viable for the holders of land. It is, therefore, contended that the provisions in the said Act are to be strictly construed to make the intentions of the legislature in enacting a statute of this nature possible inasmuch as without permission being granted to cut and remove the trees, which are planted by the owners themselves in registered holdings, there will be no attempt by anybody to plant any trees, which would ultimately defeat the purpose of the legislation itself.
5. A statement has been placed on record by the respondents. It is contended that the condition in the Patta issued to the petitioner specifies that all trees specified in the Schedule vest in the Government and that the assignee is bound to take care of all such trees standing on the land at the time of the assignment or that may come into existence subsequent to it. It is the contention of the learned WP(C).No.16102 OF 2019(K) 5 Government Pleader that the land has been assigned to the petitioner on the specific condition that the trees specified in the Schedule, which are either standing on the property or which may come into existence at any time in future would vest in the Government and that the petitioner would, therefore, have no claim to ownership of such trees. It is stated that the Schedule includes teak, black wood, ebony and sandalwood trees and that any tree coming into existence in the land covered by the grant, at any point in time, would remain vested in the Government. It is further submitted that the first proviso to Section 6(1) is a clear exemption provided by the legislature itself and that the trees reserved by the Government at the time of assignment of the land would include all trees of the varieties mentioned in the Schedule to the Patta, which were in existence of the time of the assignment or came into existence thereafter.
6. A reply affidavit has also been placed on record by the petitioner stating that the Government has been permitting the cutting and removal of trees in similar cases. It is further stated that, in view of the non-obstante clause, the WP(C).No.16102 OF 2019(K) 6 proviso has to be strictly construed to mean that only those trees specifically reserved in the Patta granted to the petitioner are exempt from the provisions of Section 6. The learned counsel for the petitioner places reliance on the decision of the Apex Court in M/s.Girdhari Lal and Sons vs. Balbir Nath Mathur and others (1986 KHC 744) to contend that, where the intention of the legislature is clear, the Court must strive to so interpret the statute so as to promote and advance the object and purpose of the enactment. Relying on the said decision, it is contended that it would even permissible for the Court to depart from the plain meaning of words using in the statute were the plain meaning would lead to an interpretation which is contrary to the purported intention of the legislature.
7. The learned Special Government Pleader has placed on record three decisions of this Court in support of his contention that proviso to Section 6(1) would include even subsequently planted trees. Relying on an unreported judgment of this Court in W.P(C) No.804/2006 [Varkey Chacko vs State of Kerala and others] which was WP(C).No.16102 OF 2019(K) 7 rendered on 03.12.2011, it is contended that, in view of the provisions of the Kerala Land Assignment Rules, 1964 and Condition Nos.1 and 2 of the Form for issuance of Patta as contained under Appendix II thereto, all trees of the species mentioned in the Schedule to the Form that is teak, black wood, ebony and sandalwood would vest in the Government. Interpreting the condition, this Court held that the full right over all the trees of the species included in the Schedule including those that coming into existence subsequent to the assignment of the property would vest in the Government and would remain so vested. In Manoj A.N. vs. State of Kerala and others (2013 (3) KHC 505) a Single judge of this Court considered the effect of the proviso to Section 6(1) and held that the non-obstante clause contained in Section 6(1) of the Promotion of Tree Growth in Non Forest Areas Act does not exclude the terms of the grant of Patta issued by the Government under the Kerala Land Assignment Act or Rules. It is stated that the condition mentioned in the Patta will have force notwithstanding the non-obstante clause in Section 6(1). It was, therefore, held that the petitioner, who was the WP(C).No.16102 OF 2019(K) 8 owner of land assigned under Patta which contains the condition with regard to vesting of the trees standing thereon and subsequently grown trees in the Government, could not claim ownership and seek to cut and remove rosewood trees, which are trees reserved in the Schedule to the Patta. A Division Bench of this Court in judgment dated 14.09.2018 in Crl.M.C No.7347/2017 also held that under Rule 3 of the 1995 Land Assignment Rules, the trees standing on the lands temporarily or permanently assigned would be the absolute property of the Government. With regard to the condition that subsequently grown trees would also vest in the Government, it was held that Rule 3 is only a vesting provision and that when forest land is being assigned, it is for the Government to impose appropriate conditions.
8. The learned counsel for the petitioner would contend that the judgment of the Division Bench did not consider the question which arises for consideration in the writ petition at all and that the issue had been pointedly left open, in view of the fact that what was being considered was the question whether a tree which was standing on the WP(C).No.16102 OF 2019(K) 9 property at the time of assignment could be affected. With regard to the decision in 2013 (3) KHC 505, it is contended that, in view of the professed purpose of the 2005 Act, the learned Single Judge erred in holding that the non-obstante clause under sub-section (1) of Section 6 does not exclude the terms of the grant of the Patta issued by the Government under Kerala Land Assignment Act or Rules and that such an interpretation was completely uncalled for. Further with regard to the unreported decision in Varkey Chacko's case (supra) the learned counsel would contend that the non- obstante clause under Section 6(1) was not under consideration in the said decision.
9. I have considered the contentions advanced. The admitted fact is that the land was covered by a Patta issued in the year 1963. The Patta contained a specific condition that the trees specified in the Schedule standing on the property under grant would vest with the Government. The condition reads as follows:-
"The full right over all the trees within the grant and specified in the Schedule vests in the Government and the WP(C).No.16102 OF 2019(K) 10 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.' Though much reliance has been placed upon the non- obstante clause in Section 6(1), I am of the opinion that, in view of the proviso, which states that the provisions of sub- section (1) of Section 6 shall not apply to trees, if any, preserved by the Government at the time of assignment of such land, the contention of the petitioner on the strength of the non-obstante clause cannot survive. The learned counsel for the petitioner contends that the said proviso could apply only to trees, which were standing on the land at the time of its assignment. I am unable to agree. The condition in Ext.P3 Patta is with regard to trees within the grant and specified in the Schedule, the trees specified in the Schedule being teak, black wood, ebony and sandalwood. This Court in Varkey Chacko (supra) has held as follows:-
"The purport of the conditions is that if the trees are one of the species mentioned in the schedule, whether the trees were standing on the land at the time of assignment or came into existence subsequent to the assignment, the tree would WP(C).No.16102 OF 2019(K) 11 belong to the Government. The Schedule mentions 4 species of tees namely, teak, black wood, ebony and sandalwood. Admittedly this tree is a teak tree. Therefore going by the conditions mentioned above, the full right over all trees within the grant standing on the land at the time of assignment or that may come into existence subsequent to it belongs to the Government.' In view of the specific condition contained in the certificate of assignment, I am of the opinion that the contention raised by the learned counsel for the petitioner that only those trees, which were actually standing on the land in question, at the time of when the Patta was issued, are exempt from the provisions of Section 6(1) cannot be accepted.
This writ petition therefore fails and the same is accordingly dismissed.
Sd/-
ANU SIVARAMAN JUDGE Bng/12.02.2020 WP(C).No.16102 OF 2019(K) 12 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COY OF SALE DEED NO.6020 DATED 7.10.06 OF KOTHAMANGALAM SRO.
EXHIBIT P2 TRUE COPY OF TAX PAID RECEIPT BEARING NO.6072029 ISSUED FROM NERIAMANGALAM VILLAGE OFFICE TO THE PETITIONER ON 6.10.17.
EXHIBIT P3 TRUE COPY OF PATTA NO.642 DATED 9.1.63 ISSUED TO MR. MUNDAN KAANNAN FROM MUVATTUPUZHA TALUK OFFICE ALONG WITH A READABLE COPY.
EXHIBIT P4 TRUE COPY OF CERTIFICATE NO.55/19 ISSUED TO THE PETITIONER FROM NERIAMANGALAM VILLAGE OFFICE ON 21.1.19.
EXHIBIT P5 TRUE COPY OF MAHAZAR PREPARED BY SPECIAL VILLAGE OFFICER ON 27.8.62 FOR ISSUE OF EXHIBIT P3 PATTA ALONG WITH READABLE COPY.
EXHIBIT P6 TRUE COPY OF ORDER ISSUED BY 2ND RESPONDENT ON 22.5.18 BEARING NO.N.R.10/2018.
EXHIBIT P7 TRUE COPY OF GOVERNMENT ORDER BEARING NO.G.O(RT) NO.395/17/E&WLD TVM DATED 20.10.17.