Kerala High Court
Arumughan K.P vs The State Of Kerala on 9 August, 2024
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W.P.(C) No.7065 of 2017
2024:KER:61525
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON
FRIDAY, THE 9TH DAY OF AUGUST 2024 / 18TH SRAVANA, 1946
WP(C) NO. 7065 OF 2017
PETITIONERS:
1 ARUMUGHAN K.P
PARACKAL HOUSE, ERNAKULAM, CHOOLANNUR P.O.,
PALAKKAD DISTRICT-678 574.
2 PRASAD A
PARACKAL HOUSE, ERNAKULAM,
CHOOLANNUR P.O., PALAKKAD DISTRICT-678 574.
BY ADVS.
SRI.P.C.THOMAS
SRI.ROJO J.THURUTHIPARA
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF FOREST AND WILD LIFE,
SECRETARIAT, THIRUVANANTHAPURAM-695 001.
2 THE WILD LIFE WARDEN
WILD LIFE DIVISION, PEECHI,
THRISSUR, PIN - 680001.
3 THE FOREST RANGE OFFICER
THE FOREST RANGE OFFICE,
ALATHUR, PIN - 678146.
BY ADVS.
SRI.SANDESH RAJA.K.,
SRI.T.P SAJAN, SPL.GP, FORESTS
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W.P.(C) No.7065 of 2017
2024:KER:61525
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
09.08.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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W.P.(C) No.7065 of 2017
2024:KER:61525
"C.R."
HARISANKAR V. MENON, J.
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W.P.(C) No.7065 of 2017
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Dated this the 9th day of August, 2024
JUDGMENT
The petitioners are father and son respectively. This writ petition is filed, challenging Ext.P8 notification issued under Section 5 of the Kerala Preservation of Trees Act, 1986 (hereinafter referred to as the 'Trees Act', for short). The petitioners have also sought for a direction to the respondents not to obstruct them from cutting and removing the trees from the agricultural lands covered by Exts.P1 to P3 title deeds.
2. The petitioners have been holding some properties on the basis of Ext.P1 in the name of the 1st petitioner and Ext.P3 in the name of the 2nd petitioner. These properties were stated to be principally planted with rubber trees as also other trees. A copy of the registration certificate obtained under the provisions of the Rubber Act, 1947, from the Rubber Board is also produced as Ext.P5, to prove that the petitioners were engaged principally in rubber cultivation.
3. Proceedings were taken against the properties of the petitioners under the provisions of the Kerala Private Forest 4 W.P.(C) No.7065 of 2017 2024:KER:61525 (Vesting and Assignment) Act, 1971 (hereinafter referred to as the 'Assignment Act', for short) by the Forest Department. This was taken up by the petitioners before the Forest Tribunal, Palakkad, culminating in the issue of Ext.P6 order dated 04.08.1979. In the said order, the Forest Tribunal found that the property concerned was cultivated with tapioca, modan, etc., and also that the petitioners had no land in excess of the ceiling limit.
4. Ultimately, after referring to a local inspection conducted on the properties, the Tribunal found that the petitioners had proved that the lands in question were put to cultivation of agricultural crops and therefore entitled to exemption under the Act.
5. Against the said order, the State filed MFA No.468 of 1980 before this Court. By Ext.P7 judgment dated 24.01.1986, this Court found that the observations by the Tribunal in Ext.P6 order can only be taken for declaring the eligibility of the petitioners for exemption with respect to the provisions of Section 3 (3) of the Assignment Act. Finding thus, the appeal filed by the State is dismissed by the Division Bench of this Court.
6. On the basis of Ext.P7 judgment, the petitioners have been holding the properties.
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7. The petitioners pointed out that, when they wanted to cut and remove the aged rubber trees and other trees standing on their properties, there was interference from the 3rd respondent. On enquiry, the petitioners were informed that the obstruction was effected by the Forest Department on the basis of Ext.P8 notification issued under the provisions of Section 5(1) of the Trees Act.
8. In such circumstances, the petitioners preferred this writ petition under Article 226 of the Constitution of India, challenging Ext.P8 notification and also seeking the afore reliefs. A detailed counter affidavit has been filed in the matter by the 1st respondent. In the counter affidavit, the Forest Department points out that, as against the properties held by the petitioners, the limitations prescribed by Ext.P8 notification are attracted, and therefore, there cannot be any cutting and removing of trees without obtaining formal permission in the matter as prescribed by the statute.
9. I have heard Sri.P.C.Thomas and Sri.Rojo J. Thuruthipara, the learned counsel appearing for the petitioners, and Sri.T.P. Sajan, learned Special Government Pleader (Forests), appearing for the respondents.
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10. Sri.P.C.Thomas, the learned counsel for the petitioners, points out that the petitioners are entitled to cut and remove the rubber trees as well as other trees on account of the following reasons;
(i) He points out that, by virtue of the order at Ext.P6 issued by the Forest Tribunal, there is a declaration to the effect that the properties held by the petitioners are not private forests. When that be so, the notification at Ext.P8 does not apply as against the properties of the petitioners.
(ii) Alternatively, it is submitted by Sri.P.C.Thomas that, if at all the notification at Ext.P8 is to apply to the properties of the petitioners, it is only in a situation where the respondents are able to prove that there were trees standing in the properties on the date of Ext.P8 notification, and the limitations under Ext.P8 would apply against them.
11. The learned Special Government Pleader, Sri.T.P.Sajan on the other hand, points out that, Ext.P6 order of the Forest Tribunal is only exempting the properties of the petitioners. He points out that there is subtle difference between exclusion and 7 W.P.(C) No.7065 of 2017 2024:KER:61525 exemption. He states that, only in a situation where there is an exclusion from application of the Assignment Act, the stand of the petitioners can be accepted. But in the present case, Sri.T.P.Sajan submits, what is extended is only an exemption, and therefore, the finding that there is a private forest with respect to the petitioners' properties is correct, on account of which, Ext.P8 notification would apply.
12. I have considered the rival submissions as well as the connected records.
13. The first point to be taken into account is as to whether the properties of the petitioners can be considered to be private forests or not with reference to Ext.P6 order and Ext.P7 judgment. Sri.P.C.Thomas, the learned counsel for the petitioners, is justified in pointing out that Ext.P6 order states that the petitioners are entitled to hold the properties to the exclusion of the Forest Department. However, it is seen that the Government has filed an appeal against Ext.P6 order. This Court, by Ext.P7 judgment, categorically found that there is some lacuna in the findings rendered by the Forest Tribunal. Therefore, it was clarified by this Court in Ext.P7 judgment that it is only a case of exemption under Section 3(3) of the Assignment Act that is declared by the order 8 W.P.(C) No.7065 of 2017 2024:KER:61525 of the Tribunal in Ext.P6. In such circumstances, the stand of Sri.P.C.Thomas with reference to the non-application of Ext.P8 notification relying on Ext.P6 order of the Forest Tribunal cannot be accepted.
14. The second issue for consideration is as to whether Ext.P8 notification applies to the petitioners' properties, de hors the findings in Ext.P6 order and P7 judgment. Ext.P8 notification is one issued under the provisions of Section 5(1) of the Trees Act. Section 5(1) of the Trees Act, reads as under;
"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 Hill 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 9 W.P.(C) No.7065 of 2017 2024:KER:61525 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 purpose of this section, the term "tree" shall include any species of tree."
15. A reference to the provisions referred to above makes it clear that, notwithstanding anything contained in the orders or judgments of Courts/Tribunals, the Government with a view to preserve the tree growth in private forest or in the Cardamom Hill Reserve, can direct that no trees standing in any such specified area as per a notification to be issued shall be cut and removed. It further says that, for cutting and removing such trees, previous permission in writing is required under sub-section (2). Explanation I states that the term 'tree' would include any species of trees. It is on the basis of the power available to the Government under the above provision that Ext.P8 has been issued. In the schedule attached to the said notification, the properties held by the petitioners have been covered with reference to O.A Nos.267, 268 and 269/76, forming the subject matter of Ext.P6 order issued by the Forest Tribunal. A reference to the explanatory note to the said notification also makes it clear that the notification at Ext.P8 has been issued with specific 10 W.P.(C) No.7065 of 2017 2024:KER:61525 reference to the order at Ext.P6 as well as the judgment at Ext.P7 noticing that there are wooded areas in and around the properties covered by the order at Ext.P6 and judgment at Ext.P7.
16. In the light of the above notification, there cannot be any doubt that, as regards the properties covered by the order at Ext.P6, held by the petitioners, the trees standing therein cannot be cut and removed without the permission prescribed by the statute.
17. It is in such circumstances that Sri.P.C.Thomas, the learned counsel for the petitioners, points out that Ext.P8 notification speaks of "standing" trees. He would say that "standing" trees have to be reckoned with reference to the date of Ext.P8 notification, which is dated 01.03.1989. He would contend that, unless and until the respondents have a case that, as on the date of Ext.P8 notification, there were trees standing in the properties forming part of Ext.P6, then only the notification can be applied as against them.
18. I am afraid that such an interpretation would render the notification at Ext.P8 as unworkable. This is because Ext.P8 has been issued by virtue of the power under Section 5(1) of the Trees Act. Section 5(1) of the Trees Act specifically refers to the 11 W.P.(C) No.7065 of 2017 2024:KER:61525 circumstances under which, a notification can be issued in the matter. Section 5(1) also speaks about standing trees. The Explanation I to the Section says that any tree, leave alone rubber trees, are covered by the provisions of the statute as well as a notification to be issued under the said provision. In that view of the matter, to restrict the application of the notification to those trees which were standing on the date of Ext.P8 notification, would definitely defeat the very purpose of the issue of Ext.P8 notification.
19. In this connection, I notice that the same issue has been considered by a Division Bench of this Court in the judgment reported as State of Kerala v. Antony Kannattu [2013 (3) KLT 111]. That was a case where, in similar circumstances, the holder of some properties claimed that the very same notification would not apply insofar as he has also obtained orders from the Forest Tribunal, exempting their properties under Section 3(3) of the Act. Considering the above issue, the Division Bench of this Court found as under;
"8. Exhibit P8 is the notification issued under sub-section (1) of the aforementioned S. 5, that, no tree standing in the area specified in the Schedule to Exhibit P8 shall be cut, uprooted, burnt or otherwise destroyed except on the grounds stipulated in clause (a) and clause (b) of sub-section 12 W.P.(C) No.7065 of 2017 2024:KER:61525 (1) of S.5. The specific prayer in Exhibit P9 made by the respondent before the authority was that the rubber trees in the property are no longer capable of producing yield, by reason of age, and they have to be cut and removed for the purpose of planting fresh rubber trees. We notice that the exemption provided under the Vesting Act is specifically on the ground of the lands being held with an intention to cultivate the same. It necessarily postulates a permission for cultivation, when the exemption has been granted. By Exhibit P1, the exemption is abundantly clear and the restoration too was effected on the basis of Exhibit P1. The State having not challenged Exhibit P1, the restoration of land on the basis of the intention to cultivate has become final.
9. The attempt of the authorities, now, on the ground of ecological imbalance would lead to a consequence of the respondent being not able to enjoy the fruits of such restoration. We cannot permit that; nor is that the purpose that is emanating from the Trees Act and the provisions thereof. We notice that Exhibit P8 notification has, by nature of an exception, extracted the stipulations in clauses (a) and
(b) of sub-section (1) of S.5. The exceptions provided are with respect to a tree which constitute a danger to life or property and when the tree is dead, diseased or windfallen.
The rubber trees having fully yielded and not being viable to be maintained thereafter, definitely would fall under the said stipulation.
10. Particularly with reference to rubber plantations and generally in agricultural parlance, the operation is referred to as "slaughter tapping", where the trees having no further yield are tapped one last time and cut away and new saplings planted thereon to facilitate growth of a plantation leading to 13 W.P.(C) No.7065 of 2017 2024:KER:61525 further yield. Under the Trees Act, we are of the opinion that a cultivation cannot be allowed to be totally eradicated, especially when the exemption contemplated under the Vesting Act is with reference to the intent to cultivate Exhibit P6 mahazar dated 23.8.2004, prepared at the time of restoration indicates existence of 1200 rubber trees in the property of 20 years of age. We are again 9 years from that date. The normal yielding life of a rubber tree is 20-25 years, making these trees virtually dead. Tending such aged trees would be not financially viable by reason of absence of yield; making them virtually dead. In such circumstances, we are inclined to hold that Exhibit P8 notification though would be applicable to any other trees existing in the subject land, the respondent would be entitled to cut and remove the rubber trees planted thereon, which, according to him, have stopped yielding, since the said activity comes under the exception provided in S.5 of the Trees Act and Exhibit P8.
11. Exhibit P1 having found that the subject land is entitled to exemption under the Vesting Act and we having found that despite that the Trees Act would be applicable, we are of the opinion that the rubber trees are to be cut and removed under the supervision of the Forest authorities. The appropriate authority under the State shall, hence, issue notice to the respondent and prepare a mahazar of the trees standing in the subject property and also record the number of trees that the respondent points out as being liable to be slaughter tapped. The respondent shall cut and remove only those trees which are being slaughter tapped, as covered under the mahazar and specifically pointed out by the respondent. The respondent shall also within a reasonable time, ensure planting of fresh saplings. The authorities of the 14 W.P.(C) No.7065 of 2017 2024:KER:61525 Forest Department also shall prepare a mahazar thereon after the said activity is completed. We make it clear that the order granted under this judgment is only to cut and remove the rubber trees which are slaughter tapped and no other trees, if any, standing in the property shall be cut or removed. The judgment of the learned Single Judge to the extent we have noticed above is set aside."
20. In that view of the matter, there cannot be any doubt that the notification at Ext.P8 would apply to the facts and circumstances of the present case also.
21. However, a further question is also to be considered in the present case. This is with reference to the standing rubber trees in the properties of the petitioners. By the judgment of this Court, referred above, the standing rubber trees can be cut and removed, after obtaining appropriate permissions under the statute. However, it is seen that, on 10.10.2017, this Court had issued the following order;
"The petitioners pray for an interim direction for cutting and removing of rubber trees standing in their property. The challenge in this writ petition is against Exhibit P8 notification issued under the Kerala Preservation of Trees Act, 1986. On the strength of the said notification, it is contended that the respondents are refusing to permit the petitioners to cut and remove the rubber trees standing in the property. Learned counsel for the petitioners relies on the decision of a Division Bench of this Court in State of Kerala v. Antony Kannattu 15 W.P.(C) No.7065 of 2017 2024:KER:61525 (2013(3) KLT 111] to contend that even where there is a notification under the Kerala Preservation of Trees Act, 1986, there can be prohibition with regard to cutting and removing of rubber trees after slaughter tapping for the purpose of replantation. No counter affidavit has been filed on behalf of the respondents.
In the above circumstances, there will be an interim direction to the respondents to permit the petitioners to cut and remove the rubber trees standing in the property in question. Hand over to both sides."
Thus, in 2017 itself, permission has been granted to the petitioners to cut and remove the standing rubber trees in their property. By the judgment of this Court, referred above, the benefits extended on 10.10.2017 have to be continued as against the petitioners. The petitioners are also to make an appropriate application under the provisions of the statute and the notification in that regard. If such an application is filed, needless to say that appropriate orders extending the benefits under the statute and the notification would be extended by respondents to the petitioners.
With the above observations, this writ petition is disposed of.
Sd/-
HARISANKAR V. MENON JUDGE anm 16 W.P.(C) No.7065 of 2017 2024:KER:61525 APPENDIX OF WP(C) 7065/2017 PETITIONERS' EXHIBITS EXHIBIT P1 TRUE COPY OF THE PARTITION DEED DATED 19- 12-1999 BEARING NO. 115/2000 OF ALATHUR SRO.
EXHIBIT P2 TRUE COPY OF THE LAND TAX RECEIPT DATED 07-10-2016 WHICH PAID IN RESPECT OF THE AFORESAID LAND.
EXHIBIT P3 TRUE COPY OF THE SETTLEMENT DEED DATED 02-06-2008 BEARING NO. 2762/2008 OF ALATHUR SRO.
EXHIBIT P4 TRUE COPY OF THE LAND TAX RECEIPT DATED 04-01-2016 WHICH PAID IN RESPECT OF THE AFORESAID LAND.
EXHIBIT P5 TRUE COPY OF THE REGISTRATION
CERTIFICATES DATED 27-03-1996 AND 12-10-
2011 OF THE RUBBER BOARD IN RESPECT OF
THE RUBBER PLANATIONS (RE-PLANTATION).
EXHIBIT P6 TRUE COPY OF THE COMMON ORDER DATED 04-
08-1979.
EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN MFA NO.
468/1980 DATED 24-01-1986.
EXHIBIT P8 TRUE COPY OF THE NOTIFICATION DATED 16-
02-1989 ISSUED U/S 5 OF THE KPT ACT,
AGAINST THE PETITIONERS LAND BY THE 1ST
RESPONDENT.