M.T. Thankachan v. State of Kerala and Others

W.P.(C).No.1741/2022 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **MONDAY, THE 22ND DAY OF MAY 2023 / 1ST JYAISHTA, 1945 WP(C) NO. 1741 OF 2022** ## **PETITIONER:** M.T.THANKACHAN, AGED 54 YEARS, S/O.THOMAS, MARIPURATH HOUSE, ELANAD POST, THRISSUR DISTRICT, PIN-680 586. BY ADVS. PEEYUS A.KOTTAM JOMON J. MALIEKAL ARJUN S BENEDICT JOSEPH P P HRITHWIK D. NAMBOOTHIRI ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM-695 001. 2 SECRETARY, FOREST AND WILD LIFE DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001. 3 PRINCIPAL SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001. 4 THE DISTRICT COLLECTOR, THRISSUR, PIN 680 003 5 THE TAHSILDAR (LR), THALAPPILLY TALUK, THALAPPILLY TALUK OFFICE, WADAKKANCHERY, THRISSUR DISTRICT, PIN-680 587. 6 THE VILLAGE OFFICER, ELANAD VILLAGE, ELANAD, THRISSUR DISTRICT, PIN-680 587. W.P.(C).No.1741/2022 2 7 FOREST RANGE OFFICER, FOREST RANGE OFFICE, MACHAD, ELANAD FOREST RANGE, THRISSUR-680 586. BY SHRI.T.P.SAJAN, SPL. G.P. (FOREST) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.12.2022, THE COURT ON 22.05.2023 DELIVERED THE FOLLOWING: W.P.(C).No.1741/2022 3 ## **T.R. RAVI, J.** **-------------------------------------------W.P.(C)No.1741 of 2022 -------------------------------------------Dated this the 22nd day of May, 2023** ## **JUDGMENT** The writ petition has been filed praying for a declaration that the condition No.1 in Appendix II of the Land Assignment Act, 1960 is _non est_ in the light of the Kerala Land Assignment (Amendment) Rules, 2017 and the objects of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 (hereinafter referred to as the 2005 Act), that the condition aforesaid does not impose any restriction for planting and cultivating trees, and that the petitioner is entitled to cultivate, manure and maintain the specified trees in their patta land, and, to cut them for the constant supply of wood for industrial growth and realisation of annual revenue from the property, and thus achieve the objective of the 2005 Act. There is also a prayer to quash Ext.P15 order issued by the 5[th] respondent and to permit the petitioner to utilise the teakwood cut down by the petitioner from his patta land for the construction of his own building. 2. The facts leading to the writ petition are as follows: 3. The petitioner’s father, the late Thomas was the owner of W.P.(C).No.1741/2022 4 1 Acre 37 cents of property in Sy.No.1207/3 as per Ext.P1 patta No.135 dated 27.12.1969 and 49 cents in Sy.No.1207/6 of Elanad Village as per Ext.P2 patta No.11/72 dtd.19.06.1973, issued by the Special Tahsildar. The property devolved upon the petitioner, his mother, and other siblings. Ext.P2 is the tax receipt for the property in the name of the petitioner's mother and others. As per the schedule to Exts.P1 and P2, there were no trees in the properties at the time of the assignment. According to the petitioner, the trees were cultivated and maintained by the petitioner's father during his lifetime, and by the petitioner, thereafter. 4. Exts.P1 and P2 pattas are issued under Rule 9(2) of the Kerala Land Assignment Rules, 1964. Condition No.1 in the Patta issued under Rule 9(2) says that the full right over all the trees within the grant and specified in the schedule vests in the Government. It also says that the assignee is bound to take care of the trees standing on the land at the time of the assignment and that may come into existence subsequently. The petitioner contends that the above condition is unreasonable, against the basic spirit of the assignment, and against the basic principles of natural justice and the right to property guaranteed under Article 300A. It is also contended that the condition is against the provisions of the 2005 W.P.(C).No.1741/2022 5 Act. According to the petitioner, if the assignee is to have no right over the trees cultivated by the assignee, no assignee will have any interest in promoting tree growth, and this will affect the equilibrium prevailing in the environment. It is submitted that as per the preamble to the 2005 Act, the intention is to promote the cultivation of trees in non-forest areas and increase tree cover and biodiversity, arrest soil erosion, and provide for a constant supply of wood for industrial growth and for maximum annual revenue in perpetuity. This purpose will be lost by taking away the right of the assignee over the trees that are cultivated by him. 5. Reliance is placed on the judgment of this Court in **Thomas Philip vs. DFO Kozhikode [2018 KHC 5268]** to emphasise on the intention of the 2005 Act. Reliance is also placed on the judgment in **Ouseph Kuriakose vs. DFO, Kothamangalam & Anr. [2020 KHC 5604],** to submit that the intention of the legislature, as discernible from the substantial provisions of the 2005 Act and the Rules made thereunder, was to remove the stringent restrictions imposed on the cutting and removal of trees standing on non-forest lands. It is contended that Sections 3 and 6 of the 2005 Act, confer power to owners of non-forest land to plant trees on their land and to cut the trees therein, except the sandalwood trees. It is W.P.(C).No.1741/2022 6 also contended that Rule 10 of the Rules prescribes how the value of trees standing on the assigned land is to be fixed and recovered from the assignee. The petitioner contends that there is no restriction as contemplated in condition No.1 of Appendix II, in the case of assignment under the Kerala Land Reforms Act and Rules and in case of assignment of Government land to members of Scheduled Tribes, and hence there is discrimination when it comes to the assignment of lands to persons who were occupying the lands and cultivating the same for years immemorial. 6. The Government vide the Kerala Land Assignment (Amendment) Rules, 2017 (produced as Ext.P4), substituted Appendix II. As per the amended Appendix, Condition No.1 was taken away. As per condition 2 in the amended Appendix II, the right over trees in the assigned land shall be as per Rule 10(3) of the Rules read with Section 22 of the Kerala Preservation of Trees Act, 1986 and Section 4 thereof. Section 5 of the Act deals with the prohibition of cutting trees in notified areas. Section 4 lays down restrictions on cutting trees. “Tree” has been defined under Section 2(e) of the Act to mean the named species of trees, which includes teak, rosewood, irul, thempavu, kampakam, chempakam, chadachi, etc. Section 22 of the Act says that any assignment of land under W.P.(C).No.1741/2022 7 any law after the commencement of the 1986 Act, shall be subject to the restrictions regarding the cutting of trees. Rule 10(3) of the Kerala Land Assignment Rules deals with the valuation of the trees specified in Parts A and B of Appendix III to the Rules, standing on the land at the time of assignment. The petitioner submits that the Rule provides only for the valuation of trees standing at the time of assignment and as there is no provision to value the trees that the assignee may plant, the trees that came into existence after the assignment do not vest in the Government. On 26.7.2018, the Government issued Ext.P6 notification under Section 5(1) of the 1986 Act. As per the notification, the trees standing on all lands except those standing on the lands which had been assigned under the Land Assignment Act are subject to the prohibition regarding cutting. Thereafter, a clarification was issued on 11.3.2020 (produced as Ext.P7), stating that the assignee is the owner of all the trees planted by him, except sandalwood trees, and that the conditions in the earlier pattas will not apply after 17.6.2017, from which day, Appendix II stood substituted. The Government thereafter issued Ext.P8 on 24.10.2020, specifically stating that the trees which were planted and grown by the agriculturists after the assignment under the Kerala Land Assignment Rules and those trees W.P.(C).No.1741/2022 8 standing on the land at the time of assignment, for which tree value had already been paid, belong to the assignee and that no permission is required to cut down the same. However, by order Ext.P9 dated 2.2.2021, Exts. P7 and P8 were cancelled. 7. The petitioner’s case is that while Exts.P7 and P8 were in force, he had cut down 12 teak trees. It is contended that the subsequent cancellation of Exts.P7 and P8 should not be held against him and that he should be permitted to utilise the teak logs for the construction of his residential house. However, there is no pleading regarding the date on which the trees were cut. Ext.P14 request for using the trees for construction is submitted only on 13.7.2021. The petitioner had filed another writ petition, W.P.(C)No.25221 of 2021 on 11.11.2021, praying for consideration of his request for using the trees for construction and the said writ petition was disposed of directing consideration of the request. None of the documents produced along with the writ petition show the date of cutting of trees. Ext.P9 order cancelling Exts.P7 and P8, was issued on 02.02.2021. There is no material to show that the trees were cut prior to Ext.P9. As such, the petitioner’s case that the trees were cut when Exts.P7 and P8 were in force, cannot be accepted. 8. The question would then arise whether, even in the W.P.(C).No.1741/2022 9 absence of Exts.P7 and P8, the petitioner was entitled in law to cut and use the trees for his own purposes. The patta issued to the petitioner does not specifically say that the trees that were planted and grown by the assignee vests in the Government. The trees that were standing on the day of the assignment alone are specifically vested. Condition No.1, however, casts a duty on the assignee to take care of the trees that may come into existence after the date of assignment. The assignment in favour of the petitioner’s predecessor was in 1969. The Kerala Preservation of Trees Act came into effect in 1986. Prior to the 1986 Act, the Kerala Restriction on Cutting and Destruction of Valuable Trees Act, 1974 was in force. The 1974 Act defined “Valuable tree” to include Teak. However, the restriction to cut Teak as per Section 4 of the Act was not absolute as in the case of sandalwood tree and rosewood tree. The provision only said that no owner of a plantation shall cut any teak from that plantation without previous permission of the authorised officer. However, the 1986 Act made the restriction absolute, when it prescribed that no person shall without previous permission in writing from the authorised officer, cut, uproot or burn or cause to be cut, uprooted or burnt, any tree. After the coming into force of the 1986 Act, it is imperative that any tree that comes within the definition of the term W.P.(C).No.1741/2022 10 “tree” in the 1986 Act, shall not be cut without permission in writing. It is immaterial whether the tree stands in patta land or otherwise and whether the right over the tree is reserved in favour of the Government or whether the tree is planted and grown by the assignee after the date of the assignment. Condition No.1 in the assignment, even if it is read to mean that the trees planted after the assignment do not vest in the Government, cannot override the provisions of the 1986 Act. 9. The question would then be whether the provisions of the 2005 Act will help the case of the petitioner. The 2005 Act defines “specified tree” to include Teak. The area in question in this case is admittedly a non-forest area. Though the Act intends to promote tree growth, it contains provisions that permit the cutting of trees as well. Section 6 of the Act gives a right to the owners to cut and remove trees in non-notified areas in non-forest land. Section 6(1) says that notwithstanding anything contained in any other law for the time being in force and subject to the other provisions of the 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. The proviso to Section 6(1) says that the provision will not apply to trees, if any, reserved by the Government W.P.(C).No.1741/2022 11 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 or the areas notified by the Custodian under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. 10. The 5[th] respondent has filed a counter affidavit. It is stated that as per Appendix II of the Rules, the trees within the grant, specified in the schedule of the patta, vests in the Government, and the assignee is bound to take care of the trees standing on the land at the time of assignment as well as those coming into existence later. This aspect is discernible from Ext.P1 and P2. It is hence contended that the petitioners are estopped from contending otherwise. 11. I have heard the counsel on either side. 12. The following aspects are not in dispute. The patta issued to the petitioner was prior to the coming into force of the 1974 Act and the 1983 Act whereby restrictions were placed on cutting of trees. The patta issued to the petitioner specifically says that trees that were standing in the property of the assignee were reserved in favour of the Government. As regards trees that come into existence later, an obligation has been placed on the assignee to take care of the same. The Land Assignment Rules does not have a W.P.(C).No.1741/2022 12 provision dealing with the valuation of trees that came into existence subsequent to the assignment. It cannot hence be said that the trees that came into existence subsequent to the assignment are vested in the Government, in the absence of any specific provision in that regard. When the 1986 Act came into force, it created a legal obligation on every land owner to get prior approval from the authorised person before cutting any specified tree. Admittedly, Teak is a species that has been included within the definition of the term 'tree'. It is when such an obligation existed, that the 2005 Act was promulgated. The 2005 Act also in its definition of 'specified tree' includes the species 'Teak'. However, the Act though intended to promote tree growth in non-forest areas, also contains specific provisions permitting the cutting of trees. Section 6 gives a right to the owners to cut and remove trees in any individual areas of nonforest lands. Section 6 starts with a _non-obstante_ clause and hence is not affected by any provision of law which had been enacted earlier including the provisions contained in the 1986 Act. The proviso to Section 6 only says that the provision will not apply to trees that are reserved by the Government at the time of assignment or trees standing on any land notified under Section 5 of the Kerala Preservation of Trees Act, 1986 or the area notified by W.P.(C).No.1741/2022 13 the custodian under the Kerala Forest (vesting and Management of Ecologically Fragile Lands) Act, 2003. As already found, the tree in the case of the petitioner's property cannot be said to be trees which are reserved by the Government at the time of the assignment, since admittedly, there were no trees standing on the property at the time of the assignment. The right of the petitioner to cut the trees can hence be subject only to the second part of the proviso which deals with trees standing on any land notified under Section 5 of the 1986 Act or areas notified under the 2003 Act. Ext.P15 whereby the request of the petitioner was rejected does not consider any of the above aspects. The order only says that since Exts.P7 and P8 have been cancelled by Ext.P9 order, the trees cut by the petitioner cannot be released to the petitioner for his own use. None of the aspects which really require consideration have been considered in the order. The order cannot be sustained. 13. In the result, the writ petition is allowed in part. The prayer to declare that condition No.1 in Appendix II is _non est_ is disallowed, since the said condition would necessarily apply in cases of reserved trees even going by the provisions of the 2005 Act. The prayer to declare that condition No.1 does not impose any condition for plantation or cultivating trees and to utilise them for benefit of W.P.(C).No.1741/2022 14 the assignee and that the same is only with regard to trees specified in the schedule also cannot be granted for the aforesaid reason itself. Ext.P15, however, cannot be sustained and is quashed. The 3[rd] respondent is directed to reconsider the application submitted by the petitioner in the light of the observations made above with regard to the effect of Section 6 of the 2005 Act on the 1986 Act and the law declared above and pass orders after hearing the petitioner at the earliest at any rate within three months from the date of receipt of a certified copy of this judgment. - Sd/ **T.R.RAVI JUDGE** dsn W.P.(C).No.1741/2022 15 ## **APPENDIX OF WP(C) 1741/2022** |PETITIONER'S|EXHIBITS| |---|---| |Exhibit P1|THE TRUE COPY OF THE PATTA NO.135 DATED| ||27.12.1969 ISSUED BY THE SPECIAL| ||TAHSILDAR, LAND ASSIGNMENT.| |Exhibit P2|THE TRUE COPY OF PATTA NO.11/72 DATED| ||19.06.973 ISSUED BY THE SPECIAL TAHSILDAR,| ||LAND ASSIGNMENT.| |Exhibit P3|THE TRUE COPY OF THE TAX RECEIPT SHOWING| ||PAYMENT OF PROPERTY TAX FOR THIS PROPERTY| ||IN ELANAD VILLAGE IN THE NAME OF THE| ||PETITIONER'S MOTHER MARY AND OTHERS.| |Exhibit P4|THE TRUE COPY OF THE GAZETTE NOTIFICATION| ||DATED 17.08.2017 OF THE KERALA LAND| ||ASSIGNMENT (AMENDMENT) RULES, 2017.| |Exhibit P5|TRUE COPY OF THE ERSTWHILE APPENDIX II| ||FORM WHICH WAS PREVAILING BEFORE| ||17.08.2017, IE; THE DATE ON WHICH KERALA| ||LAND ASSIGNMENT (AMENDMENT) RULES 2017| ||CAME INTO FORCE.| |Exhibit P6|TRUE COPY OF THE KERALA GAZETTE (EXTRA| ||ORDINARY) PUBLISHED ON 26.07.2018 BEARING| ||NO.GO NO.9/2018/FOREST ISSUED BY THE| ||PRINCIPAL SECRETARY.| |Exhibit P7|TRUE COPY OF THE CIRCULAR ISSUED BY THE| ||PRINCIPAL SECRETARY, REVENUE DEPARTMENT| ||DATED 11.03.2020.| |Exhibit P8|THE TRUE COPY OF THE ORDER BEARING| ||NO.GO/261/2020/REV. DATED 245.10.2020| ||ISSUED BY THE PRINCIPAL SECRETARY TO THE| ||GOVERNMENT.| |Exhibit P9|THE TRUE COPY OF THE ORDER BEARING| ||NO.30/2021/REV. DATED 02.02.2021 ISSUED BY| ||THE PRINCIPAL SECRETARY, KERALA| ||GOVERNMENT.| |Exhibit P10|THE TRUE COPY OF THE INTERIM ORDER DATED| ||04.11.202O IA 06/2020 IN WPC 13678/2020 BY| W.P.(C).No.1741/2022 16 THE DIVISION BENCH OF THIS HON'BLE COURT. Exhibit P11 THE TRUE COPY OF THE PRESS REPORT OF FORMER REVENUE MINISTER E.CHANDRASEKHARAN PUBLISHED IN THE TIMES OF INDIA ONLINE NEWS DATED 05.07.2021. - Exhibit P12 THE TRUE COPY OF THE NEWS REPORT IN NEW INDIA EXPRESS ONLINE NEWS DATED 14.06.2021. - Exhibit P13 THE TRUE COPY OF THE LETTER SENT BY THE TAHSILDAR, THALAPPILLY TO THE VILLAGE OFFICER, ELANAD. - Exhibit P14 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE FOREST OFFICER DATED 13.07.2021 SEEKING PERMISSION TO USE THE TEAK WOOD CUT DOWN FROM THE PETITIONERS PATTA LAND. - Exhibit P15 THE TRUE COPY OF THE ORDER BEARING NO.B126338/21 DATED 27.12.2021 ISSUED BY THE TAHSILDAR, THALAPPILLY. - Exhibit P16 TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER TO THE EFFECT THAT THIS IS A RESIDENTIAL HOUSE - Exhibit P17 THE PHOTOGRAPHS SHOWING THE LIE AND NATURE OF THE PROPERTY AND RESIDENTIAL HOUSE IN THE PETITIONER'S PROPERTY