Kerala High Court
The Managing Trustee vs State Of Kerala And Ors. on 31 March, 2006
Equivalent citations: AIR2006KER300, AIR 2006 KERALA 300, (2006) ILR(KER) 2 KER 511 (2006) 2 KER LJ 438, (2006) 2 KER LJ 438
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan, K.M. Joseph
JUDGMENT K.S. Radhakrishnan, J.
1. This original petition has been preferred seeking a writ of certiorari to quash Exts. P7 and P8 notifications issued by the Government of Kerala in exercise of the powers conferred by Sub-section (1) of Section 5 of the Kerala Preservation of Trees Act, 1986 directing the petitioner not to cut trees mentioned in the areas specified in the Schedule thereto except on the ground that the tree constitutes a danger to life or property or the tree is dead, diseased or wind fallen. Explanatory Note attached to Ext. P8 Notification reads as follows:
Explanatory Note (This does not form part of the notification, but is intended to indicate its general purport.) As per the sketch prepared by the Assistant Director of Survey, Forest Mini Survey, the area computed is 44.1342 hectares in survey No. 2050 in Agali Village. The area shown as 11.7950 hectares on the sketch prepared by the Division Surveyor is only an error while computing the area and out of this 0.5422 hectares relinquished by Arya Vaidya Sala to Irumbakachola Road. Thus the total area restored to Arya Vaidya Sala is 41.1342 hectares. In this sketch a small bit on the Southern side comprising an extent of above 0.57 hectare is marked as Vested Forest which is within the compound wall of Arya Vaidya Sala. Government decided to restore this area also to the Arya Vaidya Sala. So the total area restored to Arya Vaidya Sala comes to 44.7042 hectares.
This notification is intended to achieve the above object.
Petitioner submits that the above mentioned notification is illegal and the petitioner's properties would not fall within the scope of Section 5(1) of the Kerala Preservation of Trees Act, 1986.
2. Detailed counter-affidavit has been filed on behalf of the respondents stating that the area in question is a portion of Anakkaranam Malavaram in Pottassery village and supports large number of trees of spontaneous growth and it is felt that the petitioner may fell trees on restoration of the area and that would lead to wanton destruction of forest tree growth in the area resulting in the ecological imbalance and soil erosion. It is with a view to regulate the felling of trees available in the area the notification was issued for regulating the felling of trees as per Section 5 of the Act. It is also stated that Section 5 of the Act empowers the Government to restrict felling of trees with a view to preserve tree growth in private forests or in the cardamom hill reserve or in any other areas cultivated with cardamom by notification in the gazette. It is stated that the land is covered by the erstwhile M.P.P.F. Act and is a private forest within the definition of the Act and consequently Government is justified in issuing the notification under Section 5 of the Act.
3. Properties mentioned in the abovementioned notification was the subject-matter of O.A. No. 123 of 1977 before the Forest Tribunal, Manjeri. That was an application preferred by the petitioner herein under Section 8 of the Kerala Private Forest (Vesting & Assignment) Act, 1971 for a declaration that the properties mentioned therein is not private forest liable to be vested in the Government under the Vesting Act. Matter was elaborately considered by the Tribunal and the Tribunal held as follows:
The title of the petitioner to his property is not disputed by the respondents. Exts. A1 to A4 and A6 will prove the title of the petitioner and I find that the petitioner is the owner of the property...
There is every reason to hold that all these had been cultivated even prior to 10-5-1971. The medicinal plants and herbs cultivated in this property are agricultural crops. In the circumstances, I find that the property concerned in this petition is not a private forest as defined in Act 26 of 1971. As such it is not liable to be vested in the Government.
In the result, this petition is allowed finding that the entire extent of 130.90 acres of property concerned in this petition is not a private forest and that it is not liable to be vested in the Government under Act 26 of 1971.
The above order was appealed against by the State by filing M.F.A. No. 456 of 1978 and the same was dismissed by this Court by judgment dated 9-10-1984. Review petition, R.P. No. 64 of 1987 was preferred by the State under Section 8(C) of the Kerala Private Forests (Vesting and Assignment) Act, 1978 before this Court and the same was dismissed on 2-9-1992. Though matter has become final, lands were not restored to the petitioner and consequently filed O.P. No. 8139 of 1994 which was disposed of on 29-6-1994 directing the Government to consider and dispose of the representation dated 24-2-1993 and to restore formal possession to the petitioner.
4. Area of 41.2528 hectares was restored to the petitioner on 6-11-1995. Area of 44.7042 hectares was also restored to the petitioner as per the order in O.A. 123/77 of the Forest tribunal, Manjeri, vide Government letter dated 3-4-1998. Later Government issued two notifications, Exts. P7 and P8, restraining the petitioner from cutting and removing the trees from the area in question on the ground that the properties covered by those notifications are private forests. Notifications, as we have already indicated, were issued under Section 5(1) of the Kerala Preservation of Trees Act 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 authority, or in any agreement 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:
Provided that the provisions of this sub-section shall not be deemed to prevent the pruning of any tree as required by ordinary agricultural or horticultural practices.
(2) No person shall, without the previous permission in writing of the authorised officer, cut, uproot, burn or otherwise destroy or cause to be cut, uprooted, burnt or otherwise destroyed any tree in any area specified in the notification under Sub-section (1) on any of the grounds specified therein.
Explanation I : For the purposes of this section, the term "tree" shall not include any species of tree.
Explanation II. For the purposes of Sub-section (1), the expression "private forest" means any land which immediately before the 10th day of May, 1971 was a private forest as defined in the Kerala Private Forests (Vesting and Assignment) Act, 1971.
Explanation II to Section 5(1) states that "private forest" means any land which immediately before the 10th day of May 1971 was a private forest as defined in the Kerala Private Forests (Vesting and Assignment) Act, 1971. Therefore only those lands which falls within the definition of the Vesting Act, 1971 would fall within Sub-section (1) of Section 5. But under Sub-section (1) of Section 5, Government has got the power to issue notification to preserve tree growth in private forests, or in the Cardamom Hills Reserve or in any other areas cultivated with cardamom which in the opinion of the State is that it is a private forest. Private forest under the Kerala Private Forests (Vesting and Assignment) Act has been defined in Section 2(f), which is extracted below for easy reference.
(f) "private forest" means-
(1) In relation to the Malabar district referred to in Sub-section (2) of Section 5 of the State Reorganisation Act, 1956 (Central Act 37 of 1956)
(i) any land which the Madras Preservation of Private Forest Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding-
(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, (1963 (1 of 1964).
(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.
Explanation: Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used for purposes ancillary to the cultivation of such crops;
(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop; and (D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings.
(ii) any forest not owned by the Government, to which the Madras Preservation of Private Forest Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.
(2) In relation to the remaining areas in the State of Kerala any forest not owned by the Government including waste lands which are enclaves within wooded areas.
Explanation: For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs;
Forest Tribunal as we have already indicated, has specifically found that the land in question is not a private forest within the meaning of the Kerala Private Forests (Vesting and Assignment) Act and the same is not liable to be vested in the Government. Since the land is not a private forest within the meaning of the aforesaid Act and not a Cardamom Hill Reserve and that the area in question is not cultivated with cardamom, in our view, Sub-section (1) of Section 5 of the Kerala Preservation of Trees Act would not apply to the land in question. Reference may also be made to the judgment of the learned single Judge in Kottal Avishumma v. State of Kerala with which we fully concur. In such circumstances, we allow this original petition and quash Exts. P7 and P8 notifications since the lands in question are not private forests within the meaning of the Vesting Act, 1971.