Kerala High Court
P.N.Santhakumari@Prasanna vs State Of Kerala on 10 November, 2020
Author: P.V.Asha
Bench: P.V.Asha
WP(C).No.3090 OF 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 10TH DAY OF NOVEMBER 2020 / 19TH KARTHIKA, 1942
WP(C).No.3090 OF 2019(I)
PETITIONER/S:
P.N.SANTHAKUMARI@PRASANNA
AGED 56 YEARS
D/O. THANKAMMA, PRASANNA BHAVANAM, ARYANKAVU KARA,
ARYANKAVU VILLAGE, PUNALUR TALUK, KOLLAM-691 309
BY ADVS.
SRI.P.SIVARAJ
SRI.I.P.VARGHESE
SMT.M.M.LAIJU NISSA
SMT.R.SUDARSANA DEVI
RESPONDENT/S:
1 STATE OF KERALA
REP. BY ITS SECRETARY, FORESTS DEPARTMENT,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 THE DIVISIONAL FOREST OFFICER, THENMALA FOREST
DIVISION, THENMALA P.O, KOLLAM-691 308
3 THE RANGE FOREST OFFICER
OFFICE OF THE RANGE FOREST OFFICE, ARYANKAVU,
KOLLAM-691 309
4 TAHSILDAR (LR)
TALUK OFFICE, PUNALUR, KOLLAM-691 331
SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
22.10.2020, THE COURT ON 10.11.2020 DELIVERED THE FOLLOWING:
P.V.ASHA, J.
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WP(C) No.3090 of 2019
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Dated this the 10th day of November, 2020
JUDGMENT
The petitioner claims to be the owner in possession of 09.81 Ares of land in Sy.No.318/6/1 of Aryankavu Village in Kollam District. It is stated that the 4th respondent Tahsildar, Punalur had in Ext.P1, certified that the aforesaid property is in the ownership and possession of the petitioner, who continues to remit the tax and that 14 Teak trees standing in the aforesaid property are having the measurements as stated therein. The Divisional Forest Officer, Thenmala thereafter issued Ext.P2 No Objection Certificate on 28.06.2018 to the effect that the aforesaid property of the petitioner is not included in forest land. Alleging that permission for transportation of timber from her property was not being granted, petitioner approached this Court in WP(C) No.37172/2018. The learned Government Pleader submitted that petitioner had not submitted the required declaration and that on furnishing such a declaration the respondents would have to verify the same in accordance with the provisions of the Kerala Promotion of W.P.(C) No.3090/2019 :3: Tree Growth in Non Forest Areas Act, 2005 and the Rules made there-under. As per Ext.P3 judgment dated 27.11.2018 this Court closed the Writ Petition recording the submission and directing the respondents to consider the declaration in accordance with law, if the petitioner submits such a declaration. Petitioner is challenging Ext.P4 order dated 13.12.2018 passed by the Range Forest Officer, after the petitioner submitted the declaration, rejecting her application. It was stated that the land in Sy no. 318/6/1 property was covered by LAC Pattayam originally issued in the name of Smt.Thankamma and that as per condition nos.1 and 2 in the LAC pattayam the ownership of trees in the said land is vested in Government. It was further stated that the NOC issued by the DFO would not confer any right on the petitioner, over the trees. The Range Forest Officer ordered that under Rule 3(a)(vii) of the Kerala Promotion of Tree Growth in Non Forest Land Rules, 2006 she was restrained from removing the 14 teak trees, referred to in her application. The petitioner is challenging Ext.P4 order.
2. According to the petitioner, the conditions if any stipulated in the patta issued in favour of Thankamma, are not binding on her, as she is having the title deed in respect of the said property, in her name. According to her W.P.(C) No.3090/2019 :4: after the LAC patttayam was issued to Thankamma the land was transferred to several persons and the conditions if any in the pattayam would not be binding on the subsequent transferees. It is stated that as long as her land is not forest land as certified in Exts.P1 and P2, the denial of transit pass is illegal. Therefore, she seeks a direction to respondents 2 and 3 to issue a pass to transport the timber logs from her property.
3. The 2nd respondent has filed a statement, according to which petitioner felled the trees without getting permission from the 3rd respondent. It is stated that a complaint was preferred by one Preethi T., the daughter of petitioner, before the Range Forest Officer on 07.07.2018 pointing out the illegality in cutting trees from the land covered by LAC patta. It is stated that on verification of the records it was found that the NOC issued by the Tahsildar was ambiguous and he did not furnish the details of the land even after several queries. It is stated that as per the conditions in the Patta, trees vest in Government. It was found that the original title deed relating to the LAC patta land was not available in the Taluk Office. It is stated that as per the report submitted on 15.05.2018 based on a joint survey conducted by a team W.P.(C) No.3090/2019 :5: comprising of Forest and Revenue officials after examining all the records and inspecting the area, petitioner and her husband possess 38.8 cents of land as against 34 cents actually they are entitled to. It is also stated that the settlement deed dated 22.01.1979 based on which petitioner claims ownership, relates to the land covered by Annexure R2(a) LAC patta no.3/68 of Aryankavu Village issued in the name of petitioner's mother and as per condition nos.1 and 2 of that LAC patta, no Range Officer can issue a transit pass for transporting trees standing there. It is stated that the conditions in the Patta are not in anyway modified, because of Ext.P2 NOC and based on the said NOC petitioner was not entitled to cut the trees in violation of the conditions in the Patta. In this case the patta holder Smt.Thankamma is the mother of petitioner from whom the petitioner got the property. Condition No.1 in the patta is that the forest trees listed in the schedule or grown in the said land belongs to Government and its ownership vests in Forest Department. It is the responsibility of the patta holder to protect all the trees standing as well as those grown in the land. The 2 nd condition is that the patta holder should provide facilities to forest officials to inspect and remove the W.P.(C) No.3090/2019 :6: trees if necessary. The 3rd respondent has denied permission to the petitioner to transport the trees as he is bound to protect the trees.
4. The petitioner filed a reply affidavit stating that the respondents have denied her permission on the sole ground that a complaint was received from her daughter. It is stated that the complainant is not the daughter of the petitioner but only the daughter of her sister. It is further stated that in Annexure R2(a) pattayam there are only some general conditions and even though 4 categories of trees are mentioned there without any description, it would mean that there was no tree as on 22.10.1968 when the patta was issued to the assignee; or otherwise the girth, width, height etc of the trees would have been stated. Petitioner states that even when alienation of the land is prohibited only for a period of 10 years from the date of occupation or date of registration as per condition No.3, there cannot be any restriction with respect to the trees. Petitioner stated that the teak seedlings were planted by her husband in the year 1992 and therefore there cannot be any restriction in cutting those trees or transporting the said trees. It was stated that when the Divisional Forest Officer issued Ext.P2 NOC and Tahsildar issued Ext.P1 W.P.(C) No.3090/2019 :7: certificate of possession and enjoyment, there was no valid reason for denying her transmit pass.
5. The learned counsel for the petitioner argued that Government had already issued circular dated 11.03.2020 withdrawing the restrictions as against the trees in patta land, confining the restriction only to sandal wood trees. It was argued that even though this Court had stayed the operation of the said circular of the Government, the stay order has been modified, as per Ext.P5 order dated 21.08.2020 in I.A. No.4/2020 in W.P.(C) No. 13678 of 2020, teak trees can be cut and removed by the owner of the property notwithstanding the conditions in the patta.
6. On the other hand the learned Special Government Pleader relying on the judgment dated 03.12.2011 in WP(C) No.804/2006, Manoj A.N. vs. State of Kerala and others :
2013 (3) KHC 505, the judgment dated 16.10.2018 in WP(C) No.36602/2010, judgment dated 06.02.2020 in WP(C) No.16102/2019 and judgment dated 14.09.2018 in Criminal M.C.No.7347/2017 argued that the restriction in cutting and removing trees is not only against the trees which were standing at the time of issuance of the patta but on all trees which are grown in the land. It was also pointed out that Ext.P5 order does not permit felling of trees in W.P.(C) No.3090/2019 :8: violation of the conditions in the patta.
7. On consideration of the rival contentions, it cannot be disputed that petitioner got the land in question from her mother, who got it assigned in her name as per Annexure R1(a) patta. The assignment as per Annexure R1(a) patta is subject to the conditions mentioned therein. Those conditions are fixed in the pattas in accordance with the provisions contained in Land Assignment Rules 1964. In the judgment in Gopi vs. Tahsildar : 2002 KHC 827 this Court after analysing the provisions contained in the Kerala Govt. Land Assignment Act, 1960, Land Assignment Rules, 1964 (Kerala) etc found that an assignee of land would get title over the land covered by the patta subject to the conditions stipulated therein only. It was found that a reserved tree can be reserved perpetually and the assignee has no option to assume control over it.
8. In the judgment in WP(C) No.804/2006 this Court found that the form of the patta is to be issued in accordance with Appexdix II of the Kerla Land Assignment Rules, 1964 which contains the conditions subject to which a patta has to be issued. Condition No.1 provides that full right over all the trees within the grant and specified in the Schedule Vests in the Government and the assignee is W.P.(C) No.3090/2019 :9: 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. Four species of trees including teak tree are included in the schedule to the Rules. Therefore it was found that the owner of land covered by a patta would not have any right over the trees which were available at the time of assignment or which came into existence subsequent to that.
9. In the judgment in Manoj A.N. Vs. State of Kerala and others (supra) this Court found that in view of the proviso to sub section 1 of section 6 of the Kerala Promotion of Tree Growth in Non Forest Areas Act, 2005, no right is conferred on the owner of the property to cut and remove the trees in a land covered by a patta issued on conditions. Paragraph 11 of the judgment reads as follows:
Another contention urged by the learned counsel for the petitioner is based on section 6 of the KPTG Act which reads as under:
"6. Right of owners to cut and remove trees in non-
notified areas in non-forest land. (1) Notwithstanding anything contained in any other law for the time being in force and subject to the other provisions of this Act, every owner of non-forest land in a non-notified area shall have the right to cut and transport any tree, other than sandalwood tree, standing on his land:
Provided that the provision of this sub-section shall not apply to trees, if any,reserved by the Government at the time of assignment of such land or trees standing on any land notified under Section 5 of the Kerala Preservation of Trees Act, 1986 (35 of 1986) or the areas notified by the Custodian under the W.P.(C) No.3090/2019 :10: Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (21 of 2005).
10. Even though the learned counsel for the petitioner relying on the Division Bench judgment argued that this Court has granted permission to cut and remove such trees it is seen that this Court has only directed the authorities to ascertain the genuineness of the patta issued and it is also directed to ensure that the conditions in the patta are followed. If the conditions in the patta are followed the petitioner cannot have any right either to cut the teak tree or to remove and transport the same from the property as it vests in the Government. Therefore, Ext.P4 order cannot be said to be illegal.
The Writ Petition is accordingly dismissed.
Sd/-
P.V.ASHA
rkc JUDGE
WP(C).No.3090 OF 2019
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APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE NO.
B10.5162/15/K.DIS DATED 23.06.2017 ISSUED TO THE PETITIONER BY 4TH RESPONDENT.
EXHIBIT P2 TRUE COPY OF N.O.C NO. S-3607/2018 DTD.
28.06.2018 ISSUED BY 2ND RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT PASSED IN W.P(C) NO. 37172 OF 2018 EXHIBIT P4 TRUE COPY OF ORDER NO. AR-1-222/2017 DTD.
13.12.2018 ISSUED TO PETITIONER BY 3RD RESPONDENT.
EXHIBIT P5 TRUE COPY OF ORDER DATED 21/8/2020 PASSED BY THE DIVISION BENCH OF THIS HON'BLE COURT IN IA NO.4/OF 2020 IN WPC 13678/2020 RESPONDENTS' EXHIBITS TRUE COPY OF THE LAC PATTAYAM WITH TYPED ANNEXURE R2A COPY