Aboobacker T.K. v. Forest Range Officer, Ottapalam; Divisional Forest Officer, Palakkad; Addl. Chief Secretary, Forest & Wildlife (E) Department; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 18TH DAY OF OCTOBER 2016/26TH ASWINA, 1938** **WP(C).No. 19735 of 2016 (N)** **----------------------------** **PETITIONER(S): -------------** **ABOOBACKER T.K.,** **AGED 73 YEARS, S/O. KUNHAYAMU HAJI, THAZHETH KALLADI, KARAKURUSSI(POST), MANNARKKAD, PALAKKAD DISTRICT.** **BY ADV. SRI.P.K.MOHANAN(PALAKKAD)** ## **RESPONDENT(S):** **--------------** **1. THE FOREST RANGE OFFICER, FOREST RANGE OFFICE, OTTAPALAM, KULAPPULLY (POST), PIN-679 122.** **2. THE DIVISIONAL FOREST OFFICER, DIVISIONAL FOREST OFFICE, KALLEKULANGARA, PALAKKAD-678 009.** **3. THE ADDITIONAL CHIEF SECRETARY, FOREST WILD LIFE (E) DEPARTMENT, THIRUVANANTHAPURAM-695 001.** **4. THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **BY SRI.K. SANDESH RAJA, SPL. GOVT. PLEADER FOR FOREST** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **P.T.O.** ## **WP(C).No. 19735 of 2016 (N)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1 TRUE COPY OF THE ORDER OF THE FOREST TRIBUNAL, PALAKKAD, DTD.19.12.1978.** **EXHIBIT P2 TRUE COPY OF THE ORDER IN IA NO.80/11 IN OA NO.8/1976 DTD.30.11.2012 ON THE FILE OF FOREST TRIBUNAL, PALAKKAD.** **EXHIBIT P3 PHOTOGRAPH OF THE RUBBER TREES STANDING IN THE LAND.** **EXHIBIT P4 TRUE COPY OF HIS APPLICATION DTD.31.8.2015 SUBMITTED BEFORE THE PRINCIPAL SECRETARY, FOREST & WILD LIFE DEPARTMENT, THIRUVANANTHAPURAM.** **EXHIBIT P5 TRUE COPY OF THE LIST PREPARED BY THE FOREST RANGE OFFICER, OTTAPALAM DTD.3.2.2016.** **EXHIBIT P6 TRUE COPY OF THE LIST OF TREES STANDING IN THE EXEMPTED PROPERTY BELONGED TO THE PETITIONER AND HIS BROTHERS DTD.15.2.2016 FORWARDED TO THE ADDITIONAL CHIEF SECRETARY, FOREST WILD LIFE(E)DEPARTMENT, THIRUVANANTHAPURAM. EXHIBIT P7 TRUE COPY OF THE LETTER DTD.21.4.2016 ISSUED BY DEPUTY SECRETARY ON BEHALF OF ADDITIONAL CHIEF SECRETARY, FOREST WILD LIFE (E) DEPARTMENT, GOVERNMENT OF KERALA.** ## **RESPONDENT(S)' EXHIBITS: NIL** ## **-----------------------** **//TRUE COPY//** ## **P.S. TO JUDGE** **St/-** ## **C.R.** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.19735 of 2016 ----------------------------------------------Dated this the 18[th] day of October, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking to quash Ext.P7 order issued by the 3[rd] respondent dated 21.04.2016, whereby petitioner was declined permission to cut and remove the rubber trees slaughter tapped, resorting to Sec.5 of Kerala Preservation of Trees Act, 1986, and for other related reliefs. Material facts for the disposal of the writ petition are as follows: 2. An extent of 2 Acres of land comprised in Sy. No.57AIA of Karimpuzha II Village of Ottapalam Taluk involved in O.A.No.8 of 1976 of Forest Tribunal was exempted from the purview of Kerala Private Forest (Vesting and Assignment) Act, 1971 [hereinafter called, 'Act, 1971'], as per the judgment dated 19.12.1978 of Forest Tribunal, Palakkad, under Sec.3(2) of Act, 1971, in favour of the petitioner and his brothers, evident from Ext.P1. 2 **W.P.(C) No.19735 of 2016** 3. Though possession was restored immediately, the official communication in this regard is delayed due to some discrepancy in the survey number and the survey number is now corrected as Sy.No.57A/1A1A of Karimpuzha II Village, evident from the order in I.A.No.80/11 in O.A.No.8 of 1976 dated 30.11.2012, evident from Ext.P2. The area of land in question was under personal cultivation at the time of the alleged vesting. The above described land is now included under Sec.5 of the Kerala Preservation of Trees Act, 1986 [hereinafter called, 'Act, 1986']. There are 320 numbers of rubber trees in the above said land. The above trees are aged and not yielding. Ext.P3 is the photograph of a portion of the area of the rubber plantation. 4. Petitioner, on behalf of himself and other co-owners in occupation, applied for permission of cutting the rubber trees along with the dead trees standing in the land, evident from Ext.P4 submitted before the 3[rd] respondent. Earlier, a similar application dated 04.08.2015 was also submitted and the said application was sent to the Divisional Forest Officer, Palakkad, who in turn, forwarded the same to the Forest Range **W.P.(C) No.19735 of 2016** 3 Officer. The Forest Range Officer, Ottapalam with the help of Deputy Range Forest Officer, Thiruvazhiyode prepared an inventory of standing trees and submitted the same to the D.F.O., Palakkad for suitable action, evident from Ext.P5. After verifying and being satisfied of the same, the D.F.O has sent a copy of the list to 3[rd] respondent. A list of trees standing in the property in question dated 15.02.2016 was also forwarded to 3[rd] respondent, evident from Ext.P6. 5. However, 3[rd] respondent by Ext.P7 order dated 21.04.2016, rejected the prayer of the petitioner, according to the petitioner, without assigning any valid reason. It is in this background, challenging Ext.P7, this writ petition is filed. 6. Heard learned counsel for the petitioner and the learned Special Government Pleader, and perused the documents on record and the pleadings put forth by the respective parties. 7. The question to be considered is whether any interference is required to Ext.P7 order passed by the 3[rd] respondent. The issue with respect to Ext.P1 order passed by the Tribunal restoring the property to the petitioner, the restoration of the same to the petitioner, and the cultivation in 4 **W.P.(C) No.19735 of 2016** the property by rubber trees, are not under serious dispute. Obviously, the application submitted by the petitioner is for cutting and removing the rubber trees standing in the aforesaid property along with a list of dead trees also standing thereon. 8. It is well accepted that rubber trees are grown for extracting latex, and the trees for the purpose of extracting latex have a tenure, and it is also an accepted principle, the trees can be tapped at the most for a period of 25 years. Thereafter, slaughter tapping is done and the trees are cut and removed and thereafter new saplings are planted. This is the procedure followed in rubber plantation. After the maximum period of drawing latex and the slaughter tapping is effected, the trees lose its value as an agricultural crop, and it can be termed as 'dead' so far as its use is concerned. The Chambers Concise Dictionary defines 'dead' as follows: “no longer alive; inanimate; out of play; out of use; obsolete; inactive; unproductive etc.” 9. In that view of the matter, taking note of Ext.P1 order of the Tribunal, which has become final, and that the petitioner intends to cut and remove the rubber trees standing **W.P.(C) No.19735 of 2016** 5 in the property, and re-plant with new saplings, ought to have passed necessary orders taking into account these vital aspects. Merely because there is a prohibition created under Sec.5 of Act, 1986, that does not mean that the trees cannot be cut and removed at all. Sec.5(1) takes care of cutting and removing of trees on two grounds: (a) the trees constitute a danger to life or property; or (b) the tree is dead, diseased or wind-fallen. 10. Therefore, on a reading of the said provision, it is specific and distinct that there is no total prohibition of cutting and removing the trees. On the other hand, it is an enabling provision for cutting and removing trees under the specified circumstances mentioned thereunder. As discussed above, rubber trees, as an agricultural produce, have a maximum life. After the specified period of drawing latex, the trees become defunct and dead in all sense as an agricultural produce. Rubber trees are grown by farmers to secure latex and thereby earn livelihood out of the same. Therefore, when the trees become defunct and dead, livelihood is lost. Every farmer is entitled as of right to cut and remove the trees and plant the area with new saplings. This is the recognized practice so far 6 **W.P.(C) No.19735 of 2016** as the State of Kerala is concerned. True, as provided under Explanation I to Sec.5(2) of Act, 1986, the term “tree” is defined as any species of tree. However, as discussed above, when it has become dead _vis-a-vis_ its utility, it is to be cut and removed. 11. On a reading of Ext.P7, I do not find any reason at all assigned by the 3[rd] respondent to decline permission to the petitioner to cut and remove the rubber trees and the other trees which are alleged to be dead. 12. The reason assigned by the 3[rd] respondent in Ext.P7 order is, even now the property is private forest and as per Act, 1986, the trees situate in the said property are to be preserved. That is not a reason at all, since it is clear the rubber trees have become defunct and dead, which can be permitted, to cut and remove, and plant with new saplings. 13. A Division Bench of this Court in ' _**State of Kerala v. Antony Kannattu'**_ [2013 (3) KLT 111] had occasion to consider a similar issue, having regard to the provisions of Act, 1971 and Act, 1986 and had permitted the petitioner therein to cut and remove the rubber trees, incorporating stern and strict stipulations. I think petitioner is also entitled to get **W.P.(C) No.19735 of 2016** 7 benefit of the said judgment. 14. Taking into account the respective submissions made across the Bar and taking note of the law laid down by the Division Bench of this Court in the aforesaid judgment, Ext.P7 order passed by 3[rd] respondent is arbitrary and illegal and therefore it is quashed. Accordingly, petitioner is permitted to cut and remove the rubber trees standing in the property, under the supervision of any forest officials appointed by the competent D.F.O, and it should be ensured that the area is replanted with fresh saplings. The procedure so undertaken by the petitioner shall be scrutinized by the forest officials and sufficient records shall be retained in order to ensure that the directions issued are complied with by the petitioner in its fullest sense. 12. So far as the other trees which were recommended to be cut and removed, as per Ext.P6 order of the 2[nd] respondent dated 15.02.2016, 3[rd] respondent shall re-consider the same after issuing sufficient notice to the petitioner, also taking note of the judgment of this Court referred to _supra,_ and strictly following the procedures contemplated under the provisions of the Kerala Preservation of Trees Act, 1986. 8 **W.P.(C) No.19735 of 2016** The writ petition is allowed accordingly. Sd/- **SHAJI P. CHALY JUDGE** //true copy// P.S. to Judge St/19.10.2016