Antony Kannattu v. State of Kerala and Custodian of Vested Forest & Conservator of Forests (W.P.(C) No. 13048 of 2009 (A))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **TUESDAY, THE 14TH DAY OF FEBRUARY 2012/25TH MAGHA 1933** ## **WP(C).No. 13048 of 2009 (A)** **---------------------------** **PETITIONER:** **-------------** **ANTONY KANNATTU, SHANTY FASHION STORES, PAZHAYANOOR.** **BY ADVS.SRI.ABRAHAM VAKKANAL (SR.) SRI.PAUL ABRAHAM VAKKANAL SRI.DIJO SEBASTIAN SMT.VINEETHA SUSAN THOMAS** ## **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REP. ITS SECRETARY, FOREST AND WILD LIFE(E) DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. CUSTODIAN OF VESTED FOREST & CONSERVATOR OF FORESTS, EASTERN CIRCLE, OLAVAKKODE PALAKKAD-2.** **R,R1 & 2 BY SPECIAL GOVERNMENT PLEADER (FOREST) M.P. MADHAVAN KUTTY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 13048 of 2009 (A)** ## **APPENDIX** ## **PETITIONERS EXHIBITS** - **P1 COPY OF THE JUDGMENT IN M.F.A.NO.630/88 DATED 19-11-99** - **P2 COPY OF THE JUDGMENT IN M.F.A. NO. 569/81 DATED 26-8-86** - **P3 COPY OF THE JUDGMENT IN M.F.A.NO.648/88 DATED 29-7-94** - **P4 COPY OF THE JUDGMENTIN W.P.C.NO.36785/03 DATED 21-11-2003** - **P5 COPY OF THE CERTIFICATE NO.A4.6182/03 DATED 7-12-2004** - **P6 COPY OF THE MAHAZOR OF THE FOREST RANGE OFFICER DATED 23-8-2004** - **P7 COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DATED 8-7-87** - **P8 COPY OF THE NOTIFICATION SRD.NO.509/05 DATED 20-5-2005** - **P9 COPY OF THE REPRESENTATION DATED 6-3-2006** - **P10 COPY OF THE JUDGMENT IN W.P.C NO. 30968/2005 DATED 15-10-2008** - **P11 COPY OF THE NOTICE DATED 16-2-2009** - **P12 COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 12-3-2009** ## **RESPONDENTS EXHIBITS NIL** ## **TRUE COPY** ## **P.A. TO JUDGE** **SMM** ## **V.CHITAMBARESH,J.** = = = = = = = = = = **W.P.(C) NO.13048 OF 2009** = = = = = = = == = = = = = Dated this the 14th day of February, 2012 **==> picture [128 x 14] intentionally omitted <==** The petitioner is the owner in possession of 12.16 acres of land in Tharur Village of Alathur Taluk in Palakkad District. The petitioner obtained the property from one Lakshmi Nethiyar under a sale deed (document No.287/59 SRO Alathur). Smt.Lakshmi Nethiyar was alloted the property in the final decree in O.S.No.58/1964 on the file of the Court of the Munsiff of Alathur. The property taken assignment of by the petitioner was the subject matter of OA No.169/1976 on the file of the Forest Tribunal, Palakkad. The Forest Tribunal by order dated 9-2-1979 allowed the original application put in by the petitioner. The State later filed I.A. No.339/1985 for review of the order under Section 8 B of the Kerala Private Forests (Vesting & Assignment) Act, 1971 ('the Act' for short). The ## **W.P.(C) NO.13048 OF 2009** 2 Forest Tribunal by order dated 16-5-1988 allowed I.A No. 339/1985 which was challenged by the petitioner in MFA No. 630/1988 on the file of this Court. 2. This court by Ext.P1 judgment allowed MFA No. 630 /1988 and the same inter alia reads as follows “The description of the property as 'valarthukadu paramba' in Ext.A1 document of 1959 and other document, is an indication that the property was 'paramba'. The commission report also did not disclose that the area was having any growth of forest species.” Nevertheless relief was granted to the petitioner under Section 3(3) of the Act for the sole reason that the neighbouring properties were so exempted. Exts.P2 and P3 are the judgments in MFA Nos.569/1981 and 648/1988 in relation to the property covered by the same document of title (document No.287/1959 SRO Alathur). There is no finding in Ext.P1 judgment that the property is a private forest coming within the purview of the Act. The categoric finding on the other hand is that the Commission report does not disclose any growth of forest species. 3. The petitioner obtained restoration of possession of **W.P.(C) NO.13048 OF 2009** 3 the property in terms of Section 8 (3) of the Act as evident by Ext.P5 certificate dated 7/12/2004. Ext.P6 is the Mahazar prepared at the time of handing over the property to the petitioner. It specifically mentions that there are 1200 rubber trees in the property of age about 20 years. The petitioner also relies on Ext.P7 report of the Commissioner deputed by the Forest Tribunal in IA No.339/1985 referred to above. Ext.P7 report is also to the following effect. “ There is no trees of any kind were seen in the disputed property as well as entire Kappikunnu Malavaram forest. There is only some sprouting of trees herbs and shrubs were seen in the entire Kappikunnu Malavaram forest including the disputed property. There is no teak plantation in the petitioner schedule property and also there is no sign of cutting of teak trees or any other trees recently” ## 4. Ext.P8 is the notification issued by the Government in terms of Section 5 (1) of the Kerala Preservation of Trees Act 1986. The explanatory note to the notification inter alia reads as follows. “The petitioner in O.A has succeeded to get the area restored. If the area is restored, it is likely that the available tree growth will be removed soon after restoration which will result in land slides and ecological **W.P.(C) NO.13048 OF 2009** 4 imbalance. Therefore, it has been decided to bring the area specified in the schedule under the purview of Section 5 of the Kerala Preservation of Trees Act, 1986, for the purpose of preserving the trees and tree growth in that area.” It may at once be noticed that Ext.P8 notification was issued almost about six months after the property was restored to the petitioner. The explanatory note gives an impression that Ext.P8 notification was issued to deprive the petitioner of the benefit of Ext.P1 judgment. The petitioner subsequently filed Ext.P9 representation seeking to take the property out of the purview of Kerala Preservation of Trees Act. This was followed by Ext.P11 representation where in the petitioner refers to the sanction from the Rubber Board and the agricultural loan availed off from the bank. Ext.P12 is the order passed by the Conservator of Forests turning down the request of the petitioner in Exts.P9 and P11. This has been challenged in this writ petition under Article 226 of the Constitution of India. 5. The Government Pleader contends that the property **W.P.(C) NO.13048 OF 2009** 5 is a vested forest and that the relief was granted to the petitioner under Section 3 (3) of the Act only. Therefore there was no error in the Conservator of Forests not taking out the property from the purview of Kerala Preservation of Trees Act. He relies on the decision in **Balakrishnan Nair vs. Government of Kerala** ( **2005 (2) KLT 485)** and **Joseph vs. State of Kerala** ( **2005 (4) KLT 504)** to contend that the notification in the nature of Ext.P8 can be issued by the State. He also points out that the entire property will be denuded of the trees if the petitioner is allowed to cut down the same. 6. True it is that the relief was granted to the petitioner under Section 3 (3) of the Act in Ext.P1 for the reason that such relief was granted to the adjacent property. Nevertheless there is a categoric finding in Ext.P1 judgment that it is not a private forest and that it is only a 'paramba' . Added to this fact is Ext.P6 Mahazar prepared at the time of restoring the property to the petitioner which indicates that there are only rubber trees. Section 5 of the **W.P.(C) NO.13048 OF 2009** 6 Kerala Preservation of Trees Act would apply only if it is a private forest, or a cardamom hill reserve or any other area cultivated with cardamom (Sec: The Managing Trustee, Arya VaidyaSala Vs. State of Kerala and Others 2006 (2) KLJ 438) . The State has no case that the property of the petitioner in Palakkad is cultivated with cardamom. By no stretch of imagination can this property be brought within the purview of Kerala Preservation of Trees Act, 1986. I shall at this juncture refer to the judgment dated 29-1-2010 **K.O Thomas and Another vs. State of Kerala.** There also a relief was granted under Section 3 (2) of the Act after finding that the property is not a private forest. This Court held that the provisions of 5 of the Kerala Preservation of Trees Act 1986 cannot be clamped on the property in question. 8. Ext.P8 notification in so far as it relates to the property of the petitioner is quashed. It is without saying that Ext.P12 order turning down the request of the petitioner to take the property out of the ambit of the Kerala **W.P.(C) NO.13048 OF 2009** 7 Prevention of trees Act is also quashed. The petitioner undertakes that he will cut only rubber trees and not any tree of other species. This is recorded. The petitioner contends that he wants to replant the property with rubber which has better yield. The respondents shall not therefore obstruct the petitioner from cutting down the rubber trees or replanting the same with rubber of better yield. The writ petition is allowed as above no costs. V.CHITAMBARESH. JUDGE smm # **W.P.(C) NO.13048 OF 2009** 8