Abdul Kassim and others v. State of Kerala and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 12TH DAY OF APRIL 2019 / 22ND CHAITHRA, 1941** ## **WP(C).No. 22062 of 2007** ## **PETITIONER/S:** |**1**|**ABDUL KASSIM, AGED 34,**| |---|---| ||**S/O. KUNHARAMU,**| ||**NADUKKANCHIRA HOUSE, VEERAMANGALAM POST,**| ||**VIA. THRIKKADEERI, PALAKKAD DISTRICT.**| |**2**|***HAMSA, AGED 55,**| ||**S/O.MOIDEENKUTTY**| ||**KULUKKAMPARA, VEERAMANGALAM POST,**| ||**VIA. THRIKKADEERI, PALAKKAD DISTRICT. [DECEASED]**| |***ADDL.**|**KHADEEJA,**| |**P3**|**AGED 43 YEARS,**| ||**D/O LATE HAMSA K., KULUKKAMPARA HOUSE,**| ||**VEERAMANGALAM, THRIKKADEERI-2 VILLAGE,**| ||**OTTAPPALAM TALUK, PALAKKAD DISTRICT, PIN-679 503.**| |***ADDL.**|**FATHIMA SUHARA,**| |**P4**|**AGED 41 YEARS,**| ||**W/O MOIDEENKUTTY, KILIYANGAL HOUSE,**| ||**VEERAMANGALAM P.O., CHERPPULASSERY,**| ||**PALAKKAD DISTRICT, PIN-679 503.**| |***ADDL.**|**HAJARA,**| |**P5**|**AGED 38 YEARS,**| ||**W/O. JAMAL, KARIMBANCHOLA HOUSE,**| ||**VEERAMANGALAM P.O., CHERPPULASSERY,**| ||**PALAKKAD DISTRICT, PIN-679 503.**| |***ADDL.**|**RASHEEDA,**| |**P6**|**AGED 34 YEARS,**| ||**W/O. K.V. RAHIM, KARUPPAN HOUSE,**| ||**KACHERIKUNNU, CHERPPULASSERY P.O.,**| ||**PALAKKAD DISTRICT, PIN-679 503.**| |***ADDL.**|**MUMTAZ LAILA,**| |**P7**|**AGED 29 YEARS,**| ||**W/O. O.K SUBAIR, OREKKATTIL HOUSE,**| ||**MANGODE P.O., CHERPPULASSERY- VIA,**| ||**PALAKKAD DISTRICT, PIN-679 503.**| ||**(*ADDITIONAL P3 TO P7 ARE IMPLEADED AS PER ORDER**| ||**DATED 14/03/2018 IN IA 5030/2018).**| W.P.(C) No.22062 of 2007 2 ## **BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA SRI.P.T.ABHILASH** ## **RESPONDENT/S:** - **1 STATE OF KERALA REP. BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM.** - **2 SECRETARY, DEPARTMENT OF FORESTS, SECRETARIAT, TRIVANDRUM.** - **3 DIVISIONAL FOREST OFFICER, KALLEKULANGARA P.O., PALAKKAD.** - ***ADDL. UNION OF INDIA, R4 REPRESENTED BY ITS SECRETARY, MINISTRY OF ENVIRONMENT AND FORESTS, CENTRAL SECRETARIAT, NEW DELHI-110 001.** - ***IS IMPLEADED AS ADDL.R4 AS PER ORDER DATED 22.11.2013 IN I.A.NO.13794/2013.** **BY ADVS. R1 TO R3 - SRI. SANDESH RAJA K., SPECIAL GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02.04.2019, THE COURT ON 12.04.2019 DELIVERED THE FOLLOWING:** W.P.(C) No.22062 of 2007 3 ## **JUDGMENT** This writ petition is filed by the petitioners seeking to quash the last paragraph of Ext.P6, and further to quash Ext.P7, Ext.P9(a), Ext.P9(b), and Ext.P12, communications issued by the Divisional Forest Officer, Palakkad and the Gazette notification dated 08.10.1998, issued by the Additional Secretary to Government, Forest and Wild Life Department, respectively, under Sec.5 of the Kerala Preservation of Trees Act, 1986, directing that no trees standing in the area specified in the schedule shall be cut, uprooted, burnt or otherwise destroyed except in the circumstances mentioned thereunder, respectively. During the pendency of the writ petition, 2[nd] petitioner died, and as per the order in I.A.No.5030 of 2018 dated 14.03.2018, his legal-heirs are impleaded as additional petitioners 3 to 7. Brief material facts for the disposal of the writ petition are as follows: 2. The 1[st] petitioner and the children of the 2[nd] petitioner purchased 14.67 Acres of land in survey No.2/2 of Kadambazhipuram-I Village, Ottapalam Taluk, as per Exts.P1 and P2 sale deeds. The children of the 2[nd] petitioner executed a power of attorney in favour of the 2[nd] petitioner, authorising him to undertake all W.P.(C) No.22062 of 2007 4 needful for the property and conduct the litigation on behalf of them, evident from Ext.P3. According to the petitioners, they purchased the property for agricultural activities. The properties originally belong to one Bharathy and her children, which became vested with the Government by virtue of the provisions of Kerala Private Forests (Vesting and Assignment) Act, 1971 (in short, 'the Act, 1971'). Upon which, Bharathy and her children preferred Original Applications before the Forest Tribunal, Palakkad to release their properties from the forest. The Forest Tribunal allowed the applications, evident from Ext.P4 common order passed in O.A. Nos.370, 373, 374, 376, 378, 447 and 448 of 1975 dated 27.05.1978. 3. According to the petitioners, there is a clear finding in Ext.P4 that there is no tree growth in the property, but for the cultivation of tapioca and cashew done by the previous owners. Pursuant to Ext.P4, the properties were re-possessed by Bharathy and her children and they were remitting tax and cultivating the properties in the area where cultivation was possible. It was at that point of time, petitioners have purchased the properties, taking into account the peculiar terrain appropriate for plantation purpose, W.P.(C) No.22062 of 2007 5 but a large extent of the area were rocky. Thereupon, petitioners felt that, if the rocks were removed, the property could be more appropriately used for planting rubber. After purchase, petitioners have remitted land tax and have obtained possession certificate relating to the properties, evident from Exts.P5(a) and P5(b) dated 06.11.2006. The certificate of restoration secured by the erstwhile owners dated 04.12.2004 is produced as Ext.P6. Petitioners have also planted the non-rocky area of the properties with rubber, and the petitioners intend to do the same with the remaining extent of the properties also, and for that purpose, the rocks are to be removed. Even though petitioners made necessary arrangements for quarrying the rocks, and application was submitted through an agent who is well-versed in dealing in such matters, the Forest Range Officer, Ottapalam immediately issued a notice directing the petitioners to stop any quarrying activity proposed to be done in the properties, evident from Ext.P7. 4. Thereupon, Exts.P8(a) and P8(b) applications were submitted before the 3[rd] respondent seeking No Objection Certificate. However, no action was taken, and thereupon, approached this Court by filing W.P.(C) W.P.(C) No.22062 of 2007 6 No.4219 of 2007. While the said writ petition was pending, 3[rd] respondent has passed Exts.P9(a) and P9(b) orders, which according to the petitioners, were without even conducting any enquiry and affording an opportunity to the petitioners of being heard. It was thereupon that challenging Exts.P7 and P9(a) and P9(b), petitioners have filed this writ petition. However, consequent to the subsequent developments, the writ petition was amended incorporating a challenge against Ext.P12 Gazette notification specified above, by which, the owners of the properties included in the Schedule thereunder are directed not to cut and remove or any manner damage the trees situated in the properties, which includes the property in question belonging to the petitioners. 5. It is worthwhile to note that Ext.P6 certificate is dated 04.12.2004, and the petitioners have purchased the property during the year 2006. However, petitioners have a contention that the said certificate was handed over to the petitioners by the erstwhile owners subsequent to the purchase. It is also submitted that, under no circumstances the provisions of Sec.5 of the Kerala Preservation of Trees Act can be made applicable to the property comprised in W.P.(C) No.22062 of 2007 7 Ext.P4 order of the Tribunal, and in Ext.P4, it was clearly and categorically found by the Forest Tribunal that the property comprised in different O.As involved therein were not private forest as on 10.05.1971, since the properties were principally cultivated and hence direction was issued, to exempt the properties under Sec.3(2) of Act 26 of 1971. Therefore, there is no provision of law authorizing the 3[rd] respondent to incorporate the provisions of the Kerala Preservation of Trees Act, 1986, while restoring a property to the owner, pursuant to the order passed by the Forest Tribunal. It is also submitted that, petitioners are entitled to get the benefit of various judgments rendered by this Court in that respect. 6. The 3[rd] respondent has filed a detailed statement, contending that the property restored to the owners as per Ext.P4 is part of a huge hillock known as 'Marungodanmala', which is having the status of private forest and is lying contiguously with other Vested Forest areas held by the Department. Therefore, as held by the apex court in ' _**Godavarman Thirumulpad case**_ ', [(1997) 2 SCC 267), the term “forest” for the purpose of Forest Conservation Act includes all areas which were originally forest land and later converted. W.P.(C) No.22062 of 2007 8 So also, non-forest activity like quarrying cannot be permitted in the area in question. Further, in view of Sec.2 of the Forest Conservation Act, 1980 (in short, 'the Act, 1980'), non-forest activities can be permitted only with the approval of the Central Government, and therefore, the Union of India is a necessary party to the writ petition also, and having not impleaded the Union of India, the writ petition is bad for non-joinder of necessary parties. It is also pointed out that, quarrying in the area in question will adversely affect the surrounding forest areas and also affect large quantity of flora and fauna in the forest land, and for conservation of soil and moisture, the area has to be protected from destruction and from non-forest activities. 7. The land in question was having full soil cover originally. But, subsequent to the purchase, petitioners have started the quarrying work illegally and tried to remove the top soil of the area. It was thereupon, the work was stopped by the 3[rd] respondent. It is also submitted that, 3[rd] respondent is not taking any steps to prevent agricultural activities carried on by the petitioners. That apart, it is contended that, the agent appointed by the petitioners is a quarry W.P.(C) No.22062 of 2007 9 owner and the sole intention of the petitioners is to quarry the land and change the character of the land from forest land. Therefore, the request made by the petitioners for issuing NOC was not granted by the 3[rd] respondent. 8. That apart, it is contended, the property in question was never a proper rubber plantation, but is a forest land having Vested Forest on its boundaries, and it is also submitted that, on the eastern and western boundaries of the property in question, the Vested Forest lands belonging to the Government are situated. Petitioners were well aware of the same, while purchasing the property, and therefore, they are not entitled to secure No Objection Certificate for conducting any non-forest activities. Apart from the same, the property in question is scheduled property under Sec.5 of the Kerala Preservation of Trees Act, 1986, and therefore, no non-forest activities can be permitted without prior sanction of the Government of India as per Sec.2 of the Forest (Conservation) Act, 1980. 9. I have heard Sri. Babu Joseph Kuruvathazha, learned counsel for the petitioners and Sri. Sandesh Raja K., learned Special Government Pleader appearing W.P.(C) No.22062 of 2007 10 for the respondents and perused the pleadings and the documents on record. 10. The paramount contention advanced by learned counsel for the petitioners is based on Ext.P4 common order passed by the Forest Tribunal in favour of the erstwhile owners, wherein, according to the learned counsel, it is clearly found that there is no tree growth and the area is barren, and thereby contended that, the conditions contained under Ext.P6 restoration certificate not to cut trees and use the area for nonforestry purposes cannot be sustained. In that regard, learned counsel has invited my attention to Ext.P11 judgment of a Division Bench of this Court rendered under the Preservation of Trees Act, 1986, wherein it was held that the Forest Tribunal having found that the land in question is not a private forest within the meaning of the Kerala Private Forests (Vesting and Assignment) Act, the same is not liable to be vested in the Government, and it is not a private forest within the meaning of the aforesaid Act and not a Cardamom Hill Reserve, and therefore, Sec.5 of the Kerala Preservation of Trees Act would not apply to the land in question. W.P.(C) No.22062 of 2007 11 11. So also, a learned Single Judge of this Court in ' _**Sabaridas v. State of Kerala**_ ' [2002 (3) KLT SN 82 C No.113] had considered the issue with respect to the power to issue notification to preserve the trees under the provisions of the Kerala Preservation of Trees Act, 1986, _vis-a-vis_ a finding by Court that the property is not forest land nor cultivated with cardamom or cardamom hills, and therefore held that, the power under Sec.5 cannot be exercised so as to prevent the parties from cutting and removing the trees. So also, an unreported judgment of this Court in W.P.(C) No.12998 of 2014 dated 18.06.2014 is also pressed into service, wherein the question considered was with respect to the restoration order incorporating a condition, whereas no instruction was issued by the Government to incorporate any condition while restoring the property on the basis of the exemption order passed by the Forest Tribunal. 12. On the other hand, learned Special Government Pleader addressed the arguments on the basis of the contentions put forth in the statement filed by the 3[rd] respondent and submitted that the stand adopted by the 3[rd] respondent, declining No Objection Certificate to the petitioners for conducting quarrying operations is W.P.(C) No.22062 of 2007 12 in accordance with law. So also, invited my attention to the judgment of the apex court in ' _**State of Kerala v. Abdul Ali**_ ' [(2013) 15 SCC 274], wherein, it was held that the definition of 'private forest' under the Vesting and Assignment Act is to be taken for private forest under Sec.5 of the Preservation of Trees Act, 1986, and invited my attention specifically to paragraphs 20 and 26, which read thus: “ _**20** . Explanation II under S.5 of the Preservation of Trees Act is a piece of legislation by reference. The definition of “private forest” under the Vesting and Assignment Act is to be taken for private forest under S.5 of the Preservation of Trees Act._ _**26** . The prohibition of cutting of trees in notified areas under S.5 of The Kerala Preservation of Trees Act, 1986 would be permissible only if the land is either a private forest or a part of cardamom hills reserve or the land is cultivated with cardamom or if it is forest not owned by Government and not covered by The Madras Preservation of Private Forests Act, 1949. As already noted by us here above, there is no case for the respondents that it is part of cardamom hills reserve or that the land is cultivated with cardamom. The only dispute is with regard to the classification of the land as private forest. Since the area has been expressly excluded from the purview of private forest as defined under the provisions of The Kerala Preservation of Trees Act, 1986 and since it is not covered by S.2(f)(1)(ii) of the Vesting and Assignment Act, the Government cannot notify the area for the purpose of total prohibition of trees under S.5 of The Kerala Preservation of Trees Act, 1986._ 13. So also, a Division Bench judgment of this Court in ' _**Joseph v. State of Kerala**_ ' [2005 KHC 1503 : W.P.(C) No.22062 of 2007 13 2005 (4) KLT 504] was brought to my notice, wherein it is held that, Sec.5 of the Preservation of Trees Act, 1986, will have an overriding effect on any of the provisions in the Kerala Private Forests (Vesting and Assignment) Act, and the exemption granted from vesting under the Kerala Private Forests (Vesting and Assignment) Act, 1971 has no relevance in deciding the validity of the notification. It was also held that the term 'tree' shall include any species of tree and for the purposes of Sec.5, trees as explained in Explanation 1 would apply and not the definition of tree under Sec.2(e), and invited my attention specifically to paragraphs 2 and 3 of the said judgment, which read thus: “ **2** _. The contentions of the appellant against Ext.P9 notification are threefold. (1) In so far as the land in question had been exempted from vesting by order of the Forest Tribunal and confirmed by this Court in Appeal, under S.3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971, as a property intended to be cultivated, the notification essentially interferes with the statutory right of the appellant under the Kerala Private Forests (Vesting and Assignment) Act, 1971 to get the land cultivated and, therefore, is unsustainable. (2) Ext.P9 notification has been actuated by mala fides in view of the fact that it has been issued to negative the rights of the appellant, which was upheld by the Forest Tribunal and this Court, after prolonged litigation, at every stage of which the authorities have opposed tooth and nail to prevent the predecessor-in-interest of the appellant and the appellant, from taking possession of the same. (3) Even assuming that_ W.P.(C) No.22062 of 2007 14 _Ext.P9 notification is valid, the same can be taken to have prohibited cutting of only those trees included in the definition of tree as contained in S.2(e) of the Kerala Preservation of Trees Act, 1986 and not all trees standing in the property._ _**3** . The first contention of the appellant cannot be countenanced in view of the purpose for which the Kerala Preservation of Trees Act, 1986 was enacted and the over-riding effect of S.5 of the Act, under which Ext.P9 notification has been issued, vis-a-vis the provisions contained in any other laws, judgment, decree, order of any Court, Tribunal or other Authority or in any agreement or other arrangement. The very fact that as per Ext.P1 order of the Forest Tribunal and Ext.P2 judgment of this Court in M.F.A. arising out of Ext.P1 order, the father of the appellant was granted exemption from vesting of the property in question, under S.3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971, would categorically go to show that the land in question is a private forest and the father of the appellant was granted exemption for the purpose of cultivating the said land. As such, S.5 of the Act which applies to private forest gets specifically attracted. As is clear from the statement of objects and reasons of the Act, the Act has been enacted for preventing indiscriminate felling and destruction of trees in the State. Since the Government feared that it may result in quick denudation of the forest growth and consequent soil erosion, land slides, flood etc., Government was of opinion that such a situation is also detrimental to ecological balance. Government noticed that of late, felling of trees and destruction of flora and fauna are reported to be on the increase and that there was no effective law to prevent this tendency and, therefore, Government decided to enact a law for imposing restrictions on the cutting of trees in the State and regulating cultivation in the hill areas of the State. This very laudable and absolutely essential object, in the present day circumstances, was sought to be achieved by the enactment of the Kerala Preservation of Trees Act, 1986. S.5 of the Act which starts with the non-obstante clause “Notwithstanding anything contained in any law for the time being in force or in any judgment, decree or order of any Court,_ W.P.(C) No.22062 of 2007 15 _tribunal or other authority or in any agreement or other arrangement .......” was enacted in 1986. Of course, this was only a successor of the Kerala Restriction on Cutting and Destruction of Valuable Trees Act, 1974 and the Kerala Preservation of Trees and Regulation of Cultivation in Hill Areas Ordinance, 1983, but contains more rigorous and stricter provisions in the context of cutting of trees. The Kerala Private Forests (Vesting and Assignment) Act was enacted in 1971. As such, the Kerala Preservation of Trees Act is a later Act. In view of the said fact and the non-obstante clause in S.5 of the said Act, S.5 of the Act will have an over-riding effect on any of the provisions in the Kerala Private Forests (Vesting and Assignment) Act. Therefore, there is no merit in the contention of the appellant that the provisions of the Act in so far as they run counter to the Private Forests (Vesting and Assignment) Act, 1971 is invalid and unenforceable. In the above circumstances, the fact that the appellant’s father was granted exemption from vesting under the Kerala Private Forests (Vesting and Assignment) Act, 1971, is of absolutely no relevance in deciding the validity of Ext.P9 notification issued under S.5 of the Act. Therefore, we find absolutely no merit in the contention of the appellant that in view of the fact that the appellant’s father had been granted exemption from vesting under the Private Forests (Vesting and Assignment) Act, 1971, for the purpose of cultivation, prohibition of cutting of trees in the land would affect the said right of the appellant Ext.P9 notification is bad in so far as it would affect his rights under the Kerala Private Forests (Vesting and Assignment) Act, 1971._ 14. Further, an unreported judgment of a learned Single Judge of this Court in ' _**Jose and Others v. State**_ _**of Kerala and Others**_ ' [W.P.(C) No.30773/2014] dated 15.11.2016 is also brought to my notice, wherein, it was held that the land in question therein does not fall either in the definition of “reserved forest” or W.P.(C) No.22062 of 2007 16 “protected forest” or “vested forest”, it would still technically remain as “private forest” in view of the provisions contained in Sec.3(3) of the Kerala Private Forest Act, 1971, and in the light of the said provisions, the resultant position that emerges is that the petitioners' land would be broadly taken as a “forest” as contemplated in the provisions of Forest (Conservation) Act, 1980, enacted by the Parliament. Therefore, the activity of cultivation in lands, though legally described as “private forest”, which the State Legislature themselves have taken cognizance as lands which are used for agricultural purposes, should receive a more wider and liberal construction while determining the issues of the precious rights to cultivate on the land. Therefore, the right of cultivation which was lawfully going on before coming into force of the Forest (Conservation) Act, 1980, on and with effect from 25.10.1980, would not require any further permission or prior sanction of the Central Government as contemplated in Sec.2 thereof. 15. But, it was held that, such a right should be conferred only to cultivations which were lawfully being carried out by the land owner as on the coming into force of the Central Act and it cannot be 17 W.P.(C) No.22062 of 2007 construed to include any other activity which would have any detrimental effect of the deforestation or causing any imbalance to the ecology of the area in question and such cultivation by the land owner must be in lands within the ceiling limits prescribed in Secs.3(2) and 3(3) etc. of Act, 1980. It was further held that, the notification issued under Sec.5 of the Preservation of Trees Act only permits the petitioners to carry on with the cultivation without leading to any further breaking up or clearing of any forest land or portion thereof, and it should also be subject to the condition that the petitioners should fully comply with the prohibition contained in the notification issued under Sec.5(1) of the Preservation of Trees Act, in the matter of cutting of any trees in the area. 16. On an evaluation of the contentions put forth by the respective counsel, the primary question to be considered is, whether the conditions imposed under Ext.P6 restoration certificate issued by the 3[rd] respondent dated 04.12.2004 requires any interference. As is discussed above, as per Ext.P4 order passed by the Forest Tribunal, the claim raised by the petitioners thereunder, i.e., the erstwhile owners of the properties in question under Sec.3(2) of the Kerala W.P.(C) No.22062 of 2007 18 Private Forests (Vesting and Assignment) Act, 1971 was found tenable, since the disputed area does not exceed the ceiling limit. However, it is pertinent to note that it was admitted by the predecessors-in-title that the land was originally cultivated with teak and cashew. It was also contended by the Forest Department that the lands in dispute are lying contiguous with the forest area, and the entire area is waste land, which is enclosed with wooded area and it has never been brought under cultivation, and it was accordingly vested in the Government. 17. Anyhow, the sole finding rendered by the Forest Tribunal is that, the petitioners have got a total extent of 12 Acres of other land, and therefore, the disputed areas do not exceed the ceiling limit and accordingly, it was exempted under Sec.3(2) of Act, 1971. Therefore, I find force in the contention advanced by learned Special Government Pleader that the properties were only exempted as per Sec.3(2) of Act, 1971, and never excluded from the forest area in contemplation of the provisions of Act, 1971. Matters being so, petitioners are entitled to carry on any agricultural operations, but, they are liable by the conditions incorporated in Ext.P6 certificate of ## W.P.(C) No.22062 of 2007 19 restoration. In that view of the matter, basically the conditions contained under Ext.P6 are valid and legal and it has no bearing to the judgments of this Court relied upon by learned counsel for the petitioners, wherein the issue was trees standing in cardamom hills. That being the situation, all the other communications issued by the Divisional Forest Officer, declining No Objection Certificate to conduct quarrying operations cannot be said to be illegal and bad. 18. Now, the sole question remains to be considered is, whether any interference is warranted to Ext.P12 notification issued by the State Government under Sec.5 of the Preservation of Trees Act, 1986. There, the contention put forth by the learned counsel for the petitioners is that, it was clearly found by the Tribunal that there was no tree growth in the properties in question, prior to the introduction of the Kerala Private Forests (Vesting and Assignment) Act, 1971, and therefore, the provisions of Act, 1986 will not apply. Section 5 of Act, 1986, dealing with prohibition of cutting of tree in notified areas, read thus: W.P.(C) No.22062 of 2007 20 _“_ _**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_ **==> picture [359 x 22] intentionally omitted <==** _Provided that the provisions of this subsection shall not be deemed to prevent the pruning of any tree as required by ordinary agricultural or horticultural practices.”_ Sub-section (2) thereunder stipulates that: “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 destroy any tree in any area specified in the notification under sub-section (1) on any of the grounds specified therein”. Explanation-I states that, for the purposes of this section, the term “tree” shall include any species of tree, and Explanation-II stipulates that: for the purposes of sub-section (1), the expression “private forest” means any land which immediately before the 10[th] day of May, 1971, was a W.P.(C) No.22062 of 2007 21 private forest as defined in the Kerala Private Forests (Vesting and Assignment) Act, 1971. 19. The thrust of the contention advanced by learned counsel for the petitioners is that, the said provision cannot be put into effect since the subject property is not a Cardamom Hill Reserve or the area is cultivated with cardamom. However, it is quite clear and evident that the said provision applies in order to preserve the tree growth in private forests also. Therefore, the judgments relied upon by learned counsel for the petitioners only considering the question of Cardamom Hill Reserve, cannot have any bearing at all to the issues on hand. So also, it is clear that, as per Ext.P4 order, the Tribunal has only upheld the claim of the predecessors-in-title of the petitioners, for exemption in accordance with Sec.3(2) of the Act. 20. In that view of the matter, and taking into account the stipulations contained under Sec.5 of Act, 1986, I am of the considered opinion that, Ext.P12 notification issued by the State Government, including the property in question cannot be said to be illegal or arbitrary in any manner, entitling the petitioners to secure the relief as is sought for against Ext.P12 Gazette notification. Taking into account all the W.P.(C) No.22062 of 2007 22 aforesaid circumstances and legal situations, petitioners are not entitled to succeed in the writ petition. Resultantly, writ petition fails, accordingly it is dismissed. **Sd/-** **SHAJI P.CHALY** **JUDGE** W.P.(C) No.22062 of 2007 23 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE SALE DEED NO.1155/2006 OF KADAMBAZHIPURAM S.R.O. DATED 15/03/2006. EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.1156/2006 OF KADAMBAZHIPURAM S.R.O. DATED 15/03/2006. EXHIBIT P2(A) TRUE COPY OF THE DEATH CERTIFICATE DATED 15/12/2016 OF HAMSA K., ISSUED BY THE SECRETARY, MARADU MUNICIPALITY. EXHIBIT P2(B) TRUE COPY OF THE LEGAL HEIRSHIP CERTIFICATE DATED 23/05/2017 OF LATE HAMSA K., ISSUED BY THE TAHSILDAR, OTTAPPALAM. EXHIBIT P3 TRUE COPY OF THE POWER OF ATTORNEY NO.118/06/04 DATED 06/05/2006. EXHIBIT P4 TRUE COPY OF THE COMMON ORDER IN O.A. NOS.370, 373, 374, 376, 378, 447 AND 448 OF 1975 DATED 27/05/1978 OR FOREST TRIBUNAL, PALAKKAD. EXHIBIT P5(A) TRUE COPY OF THE POSSESSION CERTIFICATE DATED 06/11/2006 ISSUED IN FAVOUR OF THE 1ST PETITIONER. EXHIBIT P5(B) TRUE COPY OF THE POSSESSION CERTIFICATE DATED 06/11/2006 ISSUED IN FAVOUR OF THE 2ND PETITIONER. EXHIBIT P6 THE TRUE COPY OF THE CERTIFICATE DATED 04/12/2004 ISSUED BY THE THIRD RESPONDENT. EXHIBIT P7 TRUE COPY OF THE NOTICE DATED 16/02/2007 ISSUED BY THE FOREST RANGE OFFICER, OTTAPALAM TO THE PETITIONERS. EXHIBIT P8(A) TRUE COPY OF THE PETITION PREFERRED BY THE PETITIONER NO.1 DATED 05/01/2006. EXHIBIT P8(B) TRUE COPY OF THE PETITION PREFERRED BY THE PETITIONER NO.2 DATED 05/01/2006. EXHIBIT P9(A) TRUE COPY OF THE ORDER ISSUED BY THE THIRD RESPONDENT DATED 20/03/2007 ISSUED TO THE PETITIONER NO.1.** W.P.(C) No.22062 of 2007 24 **EXHIBIT P9(B) TRUE COPY OF THE ORDER ISSUED BY THE THIRD RESPONDENT DATED 20/03/2007 ISSUED TO THE PETITIONER NO.2. EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 14/06/2007 IN WPC NO. 4219/2007 ISSUED BY THIS HON'BLE COURT.** - **EXHIBIT P11 TRUE COPY OF THE JUDGMENT OF THE LEARNED DIVISION BENCH OF THIS HON'BLE COURT IN ARYA VAIDYA SALA V. STATE OF KERALA (OP NO.16323/1998) DATED 31/03/2006, REPORTED IN 2006(2) KLT SN 118.** - **EXHIBIT P11(A) TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP NO.7454/2001 DATED 26/07/2002, REPORTED IN 2002 (3) KLT SN 113.** - **EXHIBIT P12 TRUE COPY OF THE NOTIFICATION SRO NO.933/1998 PUBLISHED AS PER GO(P) NO. 87/98/F&WLD DATED 08/10/1998 IN THE KERALA GAZETTE EXTRA ORDINARY DATED 26/10/1998.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3(A)** TRUE COPY OF GO(P) NO.87/98/F&WLD DATED 08/10/1998. //TRUE COPY// P.S. TO JUDGE St/-