Kerala High Court
State Of Kerala vs Thomas Philip on 26 June, 2013
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
THURSDAY, THE 4TH DAY OF FEBRUARY 2016/15TH MAGHA, 1937
WA. No.1961 of 2013 () IN WP(C). No.16056/2006
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AGAINST THE JUDGMENT IN WP(C) NO.16056/2006 OF HIGH COURT OF KERALA
DATED 26-06-2013.
APPELLANT(S)/RESPONDENTS IN THE W.P(C):
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1. STATE OF KERALA,
REPRESENTED BY THE SECRETARY,
DEPARTMENT OF FORESTS. THIRUVANANTHAPURAM.
2. THE FOREST RANGE OFFICER, FOREST RANGE OFFICE,
ERUMELI, KOTTAYAM DISTRICT.
3. THE TAHSILDAR, PERRMADE TALUK, PEERMADE, IDUKKI.
BY SENIOR GOVERNMENT PLEADER SRI.JAMES KURIAN
RESPONDENT(S)/PETITIONER IN THE W.P(C):
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THOMAS PHILIP, S/O. LATE V.M.PHILIP,
CHANDRAVANAM ESTATE, KEERIKKARA POST,
VANDIPERIYAR, IDUKKI-6835533.
BY ADVS. SRI.G.HARIHARAN
SRI.PRAVEEN.H.
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04-02-2016, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
KRJ
ASHOK BHUSHAN, C.J &
A.M.SHAFFIQUE, J
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W.A No.1961 of 2013
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Dated this the 4th day of February, 2016
JUDGMENT
Shaffique, J This appeal has been filed by the respondents viz., the State of Kerala and its authorities challenging the judgment dated 26.6.2013 in W.P(C) No.16056 of 2006.
2. We heard the learned Special Government Pleader Sri.M.P.Madhavankutty and Sri.G.Hariharan, the learned counsel appearing on behalf of the respondent.
3. The writ petition was filed by the respondent herein challenging Ext.P4 by which, the Forest Range Officer by letter issued in June, 2006 refused to grant permission to the petitioner to cut trees in Sy. No.649 of Manjumala village in Peermade referring to clause (5) of the conditions of lease. Petitioner also sought for a direction to the Forest Range Officer to permit him to cut and remove the trees specified in his application under Section 6 of the Kerala Promotion of Tree Growth on Non-forest Areas Act, 2005.
4. Short facts involved in the writ petition would disclose that the petitioner claims to have obtained leasehold right in respect of 205.28 in Sy. No.649 and 17.15 acres in Sy. No.647 of Peermade WA.1961/13 -:2:- pakuthi. The land was originally leased by erstwhile Travancore Government in favour of one Mathew Philip, who is termed as grantee, for the purpose of cultivating coffee or tea in the property. One of the conditions in the lease was that the full right to royal trees within the grant is reserved and continues to vest in the Government. It was also mentioned that the grantee shall be bound to take care of the royal trees which was specified in Column 5 of the Schedule until they are removed or otherwise disposed of by the Government. The Schedule refers to 6 blackwood trees in Sy. No.647 and 23 stack wood trees in Sy. No.649. The petitioner, who is the successor in interest of the original grantee, requested for cutting and removal of 104 rosewood trees and 40 teakwood trees which was not included in the schedule of the original lease deed. According to him, the said trees were planted and he is entitled to cut the trees in terms of Section 6 of the Kerala Promotion of Tree Growth on Non-forest Areas Act, 2005. The Forest Range Officer, however, rejected the same in terms of Ext.P4 which was under
challenge before this Court.
5. The learned Single Judge having heard the parties, relying on the judgments in Sri.Ram Saha v. State of West Bengal & Others (AIR 2004 SC 5080), State of Kerala v. Kannan Devan WA.1961/13 -:3:- Hill Produce Company Ltd. [1998 (1) KLT 28] and the Divisional Forest Officer v. Tata Finlay Ltd. [2001 (2) KLT 833] held that the trees planted by individual, who is the owner, has right over the same and, therefore, the writ petition was allowed. While quashing Ext.P4, the Government was directed to grant permission to the petitioner for cutting and removing the said trees. It is impugning the aforesaid judgment that this writ appeal has been filed.
6. It is, inter alia, contended by the learned Special Government Pleader appearing on behalf of the appellants that the learned Single Judge failed to consider the scope and impact of the respective contentions urged on behalf of the respondents. It is stated that as per the terms of the grant/lease deed, the royal trees were reserved in favour of the Government and, therefore, the Kerala Grants and Leases (Modification of Rights) Act, 1980 will apply to the factual situation. Under such circumstances, in terms of Section 4(1) of the said Act, if at all the petitioner is permitted to cut and remove the trees, seigniorage value has to be paid to the Government. It is contended that this aspect of the matter has been completely ignored by the learned Single Judge and the judgments relied on did not consider the said contention made on behalf of the State and its authorities. On the other hand, learned counsel WA.1961/13 -:4:- appearing for the respondent/writ petitioner would submit that the trees which he had sought to be cut and removed were planted by him and in terms of Section 6 of the Kerala Promotion of Tree Growth on Non-forest Areas Act, 2005, he is entitled to cut and remove the same.
7. It is apparent from Ext.P4 that the petitioner was not granted permission to remove the timber based on clause (5) of Ext.P1 lease deed. Whether the Kerala Grants and Leases (Modification of Rights) Act, 1980 shall apply to the grant and the petitioner is liable to pay seigniorage rates for the timber cut and removed, or whether the petitioner is entitled to cut and remove timber in terms of Section 6 of 2005 Act was not considered by the learned Single Judge. Learned counsel for the petitioner also submits that the area in question is a non-forest land as defined under Section 2(c) the Kerala Promotion of Tree Growth on Non-
forest Areas Act, 2005.
8. Having regard to the aforesaid factual situation, we are of the view that this matter has to be considered by the competent authorities which apparently has not been taken into consideration at all. Hence, the learned Single Judge was not justified in issuing the directions as stated above.
WA.1961/13 -:5:-
In the said circumstances, we allow this appeal and set aside the judgment of the learned Single Judge, and the appeal is disposed of with the following directions:
That the request of the petitioner for cutting and removal of timber shall be considered by the Forest Range Officer, Erumely and appropriate order shall be passed in accordance with law. The Officer shall also consider the application of Kerala Grants and Leases(Modification of Rights) Act, 1980 as well as the Kerala Promotion of Tree Growth on Non-forest Areas Act, 2005 while considering the above request. This shall be done after hearing the petitioner and within two months from the date of receipt of a copy of this judgment.
Sd/-
ASHOK BHUSHAN CHIEF JUSTICE Sd/-
A.M.SHAFFIQUE
JUDGE
krj.4/2/16
//true copy// P.A to Judge