S. Murugadas S/o Subramania Chetiyar v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 25TH DAY OF MAY 2020 / 4TH JYAISHTA, 1942** ## **WP(C).No.4844 OF 2013(E)** ## **PETITIONER:** **S. MURUGADAS S/O SUBRAMANIA CHETIAR, RESIDING AT KORAMBARA, POOPPARA, SANTHANPARA P.O., IDUKKI DISTRICT.** **BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SMT.SMITHA GEORGE** ## **RESPONDENTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**| ||**DEPARTMENT OF REVENUE, GOVERNMENT OF KERALA,**| ||**THIRUVANANTHAPRUAM, PIN:695 001.**| |**2**|**THE DISTRICT COLLECTOR**| ||**IDUKKI DISRICT, PAINAVU-685 603.**| |**3**|**THE REVENUE DIVISIONAL OFFICER**| ||**DEVIKULAM, IDUKKI DISRICT PIN685 613.**| |**4**|**THE TAHSILDAR**| ||**UDAMBANCHOLA TALUK, NEDUMKANDAM,**| ||**IDUKKI DISTRICT-685 553**| |**5**|**THE VILLAGE OFFICER**| ||**POOPARA VILLAGE, POOPARA,**| ||**IDUKKI DISTRICT, PIN:685 619.**| |**6**|**THE DIVISIONAL FOREST OFFICER**| ||**DEVIKULAM, IDUKKI DISTRICT-685 613.**| **WP(C).No.4844 OF 2013** **2** **7 THE RANGE OFFICER DEVIKULAM FOREST RANGE OFFICE, DEVIKULAM, IDUKKI DISTRICT-685 619.** **SRI.SANDESH RAJA, SPECIAL GOVERNMENT PLEADER (FOREST)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0203-2020, THE COURT ON 25-05-2020 DELIVERED THE FOLLOWING:** **WP(C).No.4844 OF 2013** **3** ## **JUDGMENT** ## **Dated this the 25[th] day of May 2020.** ## 1.This writ petition is filed with the following prayers:- - “i)To issue a Writ of Mandamus commanding the respondents to consider the request of the petitioner to grant permission to him to remove unwanted trees like Silver Oak trees and other trees not falling within the purview of forest trees. i-a) To call for the records leading up to Exhibit P5 and quash the same by the issuance of a Writ of Certiorari or any other appropriate writ, order or direction. ii) To issue such other writs, orders or directions as this Hon’ble Court may deem fit and proper in the circumstances of the case. “ - 2.Heard the learned Senior Counsel appearing for the petitioner and the learned Special Government Pleader for the respondents. - 3.The petitioner claims to be in possession of cardamom lands in Survey No.11/41 at Poopara Thavalam of Poopara Village in Idukki District. The petitioner contends that he made an application for cutting and removal of silver oak trees standing in the cardamom land. It is contended that one K.Asokan had filed an earlier writ petition, that is; W.P.(C) No.7534/2011 seeking permission to cut and remove the trees. However, the respondents had taken a stand that the properties stand in the name of the petitioner and that **WP(C).No.4844 OF 2013** **4** Asokan therefore cannot be permitted to cut and remove the trees. It is submitted that the writ petition was therefore withdrawn. It is stated that Ext.P5 order has been passed by the 7[th] respondent rejecting the request made by the petitioner for cutting and removing the silver oak trees. The said order is under challenge on the ground that the petitioner, being the owner of the properties in question, is legally entitled to cut and remove the silver oak trees under the provisions of the Promotion of Tree Growth in Non Forest Areas Act, 2005 (Kerala). It is contended that the findings in the impugned order are illegal and unsustainable. 4.A statement has been placed on record by the 7[th] respondent. It is submitted that the property of the petitioner is situated in Poopara Village of Udumbanchola Taluk of Idukki District and that the property is a part of land notified under Section 5(1) of the Kerala Preservation of Trees Act, 1986. It is stated that Section 5 of the Kerala Preservation of Trees Act provides that no trees standing in notified land shall be cut, uprooted, burnt or otherwise destroyed except where the tree constitutes a danger to the life or property, or where the tree is dead, diseased or wind-fallen. It is stated that no person can cut, uproot, burn or otherwise destroy any tree in any area specified in the notification without the prior written **WP(C).No.4844 OF 2013** **5** permission of the Authorised Officer. It is stated that Ext.P5 specifically states the reasons for rejection of the request to cut the trees. It is stated that an inspection had been conducted and it was found that the trees were perfectly healthy and that there was no sign of any disease in the trees. It is stated that the application had initially been submitted in the year 1997 on the ground that the trees caused danger to life and property. However, in an inspection conducted by the Authorised Officer, it was found that the trees are perfectly healthy and does not cause any danger to life or property. It is therefore contended that since the trees have admittedly not suffered any damage from the date of the first application to cut and remove the same, the said application is clearly misconceived and cannot be allowed in view of Section 5 of the Kerala Preservation of Trees Act. 5.The learned Special Government Pleader also relies on a decision of a Division Bench of this Court in Range Officer/Authorised Officer, Devikulam and Another v. Munnar Tea Garden Residency, Pallivasal [2016 (2) KHG 359] to contend that the Preservation of Trees Act, 1986 restricts the cutting of any tree which is notified under Section 5(1). It is further contended that Exhibit P5 order of the authorised officer is issued after considering all relevant aspects of **WP(C).No.4844 OF 2013** **6** the matter. It is stated that Exhibit P5 contains a finding of fact that the trees pose no danger of any kind, which is borne out by the fact that the trees have survived for all these years after the filing of the application without falling or causing any damage whatsoever. - 6.I have considered the contentions advanced. The writ petition had been filed as early as on 18.2.2013 seeking permission for cutting and removing of oak trees standing in the cardamom plantations. Apparently, requests were made much earlier seeking permission to cut the trees on the ground that the trees are old and diseased and cause danger to the life and property, including the cardamom plantations. It is stated that where a tree constitutes a danger to life or property or the tree is dead, diseased or windfallen, the permission to cut and remove the same is liable to be granted by the authorised officer. - 7.Having considered the contentions advanced, I find that the question whether the tree causes threat to the life and property of the petitioner or residents of the locality has been specifically considered by the authorised officer in Exhibit P5. It is also submitted by the learned Special Government Pleader that though **WP(C).No.4844 OF 2013** **7** the application was filed in the year 1997, the trees have not caused any threat to life or property of the inhabitants of the area in all these seven years. It is, therefore, to be assumed that the trees were healthy trees and the permission sought for cutting and removing of the said trees on the ground that they are old and deceased was not factually correct. In the absence of any material illegality in the decision making process, this Court would not be justified in interfering with the finding of fact entered into after due inspections. In the above view of the matter, I am of the opinion that the prayers sought for in the writ petition cannot be granted. The writ petition fails and the same is accordingly dismissed. Sd/- **Anu Sivaraman, Judge** sj **WP(C).No.4844 OF 2013** **8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF LETTER NO.115/11 DATED 31/05/2011 SENT BY THE VILLAGE OFFICER, POOPARA TO DFO, DEVIKULAM.** **EXHIBIT P2 TRUE COPY OF PROCEEDINGS NO.LC.19/99 DATED 14/06/1999 BY THE SPECIAL DEPUTY TAHSILDAR (CARDAMOM SETTLEMENT), DEVIKULAM.** **EXHIBIT P3 TRUE COPY OF REPORT DATED 23/04/1997 BY R3. EXHIBIT P4 TRUE COPY OF LETTER DATED 21/06/1997 BY TAHSILDAR, UDUMABCHOLA.** **EXHIBIT P5 COPY OF ORDER NO.D.149/2017 DATED 27/01/2017 ISSUED BY THE RANGE FOREST OFFICER, DEVIKULAM.** **RESPONDENT'S/S EXHIBITS: NIL**