Kerala High Court
Balakrishnan Nair vs Government Of Kerala on 22 February, 2005
Equivalent citations: AIR2005KER223, 2005(2)KLT485, AIR 2005 KERALA 223, (2005) 1 KER LJ 760 (2005) 2 KER LT 485, (2005) 2 KER LT 485
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, M.N. Krishnan
JUDGMENT K.S. Radhakrishnan, J.
1. This matter has been placed before us on a reference made by the learned Single Judge.
2. The question is with regard to the interpretation of Section 5(1) of the Kerala Preservation of Trees Act, 1986 which prohibits cutting of trees in the notified area. Contention was raised by the petitioner laying stress on the expression "tree growth" stating that what is envisaged in Section 5(1) is only wild growth and not the trees planted by the petitioner. Counsel submitted Section 5 of the Act enables the Government to issue notification only to preserve tree growth in private forests, or in the Cardamom Hills reserve or in any other areas cultivated with Cardamom and that the words "tree growth" refers only to wild growth and not plantations. Learned Single Judge felt that on the above question an authoritative pronouncement is warranted.
3. We heard Senior Counsel Sri.P.N.K. Achan as well as Special Government Pleader for Forests Smt. Susheela Bhat.
O.P.No. 14224 of 1994. Decided on 22nd February, 2005.
4. Petitioner through his Power-of-Attorney had filed O.A. before the Forest Tribunal, Palakkad for exempting 8.22 acres of land in Keralassery village from the provisions of Section 3(2) of the Kerala Private Forest (Vesting and Assignment) Act, 1971. Application was allowed by the Forest Tribunal on 2.8.1977. State took up the matter in appeal M.F.A. No. 108 of 1978 which was dismissed. Consequently the area involved in O.A. was restored to the petitioner on 9.7.1993 after notifying the area under Section 5 of the Kerala Preservation of Trees Act.
5. Notification issued under the Act was published in the Gazette dated 2.7.1991 as per G.O.(P) No. 45/91/F&WLD dated 10.6.1991. The notification and the explanatory note attached to it is extracted hereunder for easy reference.
S.R.O. No. 891/91 -- In exercise of the powers conferred by Sub-section (1) of Section 5 of the Kerala Preservation of Trees Act, 1986 (35 of 1986) read with Sub-section (2) of Section 5 thereof the Government of Kerala hereby direct that no tree standing in the area specified in the Schedule below, shall be cut, uprooted, burnt or otherwise destroyed except on the ground that--
(a) the tree constitutes a danger to life or property, or
(b) the tree is dead, deceased or wind fallen.O.A.No. : O.A.548/74
District : Palghat
Taluk : Palghat
Village : Keralassery
Name of Malavaram : Tadukkassery Malavaram
Survey No. : ResurveyNos. 201/1, 11, 12, 13,31,206/10, 11,
(Old Survey Nos. 255/1 , 2, 256/1 , 2, 3, 6, 257/2, 3,
11)
Extent : 3.3251 hectares
Boundaries:
East : Changanathu Chinnammalu Amma Paramba and
areas in Survey field No. 202/pt.
South : do
North : Vested Forest and area in survey Field No. 201/9,
10 and area 200.
West : Thodu
Explanatory Note
(This does not form part of notification but is intended to indicate its general purport) The area forms parts of private forests coming under erstwhile M.P.P.F. Act and having large spontaneous tree growth of forest species. The petitioner in O.A. 548/74 succeeded in getting the area restored as per Section 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. It is likely that the petitioner will cut and remove the trees available there which will result in wanton destruction of trees and will lead to ecological imbalance including land slide, soil erosion etc. Therefore, this area has to be notified under Section 5 of the Act.
The above mentioned notification was issued in exercise of the powers conferred by Sub-section (1) of Section 5 of the Kerala Prevention of Trees, 1986. The said provision is extracted below for easy reference.
"5. Prohibition of cutting of tree in notified areas:- (1) Notwithstanding anything contained in any law for the time being in force, or in any judgment, decree or order of any Court, tribunal or other arrangement, the Government may, with a view to preserving the tree growth in private forests, or in the Cardamom Hills Reserve or in any other areas cultivated with cardamom, by notification in the Gazette, direct that no tree standing in any such area specified in the notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that-
(a) the tree constitutes a danger to life or property; or
(b) the tree is dead, diseased or windfallen:
Scope of the above mentioned provision came up for consideration before one of us (K.S. Radhakrishnan, J.) in Mathew and Anr. v. D.F.O. and Ors., 1997 (1) KLT 61 = 1996 (2) KLJ 461 and Kummath Chandran and Ors. v. State and Ors., 1996 (2) KLJ 781. Decision in Mathew's case, supra, 1997 (1) KLT 61 = 1996 (2) KLJ 461, was appealed against in W.A. No. 1906 of 1996 and the appeal was dismissed on 27.2.2002. The scope of Sections 4 and 5 of the Act was considered in Mathew's case, supra and the Court held as follows:
"Act 35 of 1986 is an Act enacted to preserve trees in the State of Kerala. Act was enacted to regulate indiscriminate felling and destruction of trees in the State of Kerala, since it was found that there has been indiscriminate felling and destruction of trees in the State of Kerala resulting in considerable soil erosion and destruction and loss of timber wealth of the State. Before the Promulgation of this Act, Kerala Restriction on Cutting and Destruction of Valuable Trees Act, 1974 was in force in the State of Kerala. It restricted cutting and destruction of certain valuable trees in private lands in the State of Kerala. Valuable tree had been defined in the said Act to mean sandalwood, rosewood and teakwood tree. Kerala Prevention of Trees Ordinance, 1986 was also in force. Both the Act of 1974 and Ordinance of 1986 were repealed by 1986 Act. Object of the present Act, apart from making restriction on cutting and destruction of trees in private lands, is also to prevent soil erosion and destruction and loss of timber wealth in the State.
Section 4 of the Act restricts the cutting of trees without previous permission of the authorised officer in writing. This provision only restricts the cutting, so as to achieve the object of the Act that is to prevent soil erosion and destruction of loss of timber generally from private holdings. However, permission shall not be refused if the tree constitutes danger to life or property or if the tree is dead, diseased, or windfallen."
Contention was raised by the Senior Counsel Sri. P.N.K. Achan that the Government have got the power to issue notification only to preserve tree growth in private forests or in any other areas cultivated with cardamom and that the words "tree growth" refers only to wild growth and not plantations. We are of the view, the expression "tree growth" as such cannot be read in isolation. For the preservation of tree growth Government can issue notification under the preservation of Trees Act. Tree growth would take in the trees specified in the notification. Notification has to be issued by the Government in exercise of powers under Section 5(1) of the Act to preserve tree growth which takes in all trees specified in the notification. We are of the view that is the only interpretation possible. In the light of the above interpretation, contention raised by the counsel has no force. In such circumstances, Writ Petition lacks merits and the same would stand dismissed.