State of Kerala v. Antony Kannattu

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 18TH DAY OF JUNE 2013/28TH JYAISHTA 1935** **WA.No. 1379 of 2012** **------------------------------** ## **WP(C) 13048/2009 of HIGH COURT OF KERALA** **-------------** ## **APPELLANT(S)/RESPONDENTS IN WP:** **-----------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY FOREST AND WILDLIFE (E) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM .** **2. THE CUSTODIAN OF VESTED FOREST & CONSERVATOR OF FORESTS, EASTERN CIRCLE, OLAVAKKODE, PALAKKAD - 2.** ## **BY SPL. GOVERNMENT PLEADER MR.M.P.MADHAVANKUTTY** ## **RESPONDENT/PETITIONER IN WP:** **------------------------------------------------** **ANTONY KANNATTU, SHANTY FASHION STORES , PAZHAYANOOR P.O.,THRISSUR-680587.** **BY ADV.SRI.ABRAHAM VAKKANAL (SR.)** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** Manjula Chellur, C.J. & K.Vinod Chandran, J. -----------------------W.A.No.1379 of 2012 -----------------------Dated this, the 18[th] day of June, 2013 ## JUDGMENT ## K.Vinod Chandran,J. The State impugn the judgment of the learned Single Judge, which found that Exhibit P1 judgment, with respect to the very same property, which is the subject matter in this case, held that the same is not a private forest and that the provisions of Section 5 of the Kerala Preservation of Trees Act, 1986 (for brevity, hereinafter referred to as “the Trees Act”) cannot be applied to the property. Exhibit P8 notification issued under the Trees Act was, thus, quashed and the turning down of the writ petitioner's request to take the property out of the ambit of the Trees Act, Exhibit P12 was set aside. 2. The learned Special Government Pleader (Forests) contend before us that Exhibit P1 never found that the respondent's property is a private forest, but in fact found that it is eligible for W.A.No.1379 of 2012 - 2 - exemption under Section 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for brevity, hereinafter referred to as “the Vesting Act”). It is the further argument of the appellants that the respondent having been granted exemption under Section 3(3) of the Vesting Act, the Trees Act would apply, since the Trees Act would have an overriding effect on the provisions of the Vesting Act, as has been held by a Division Bench of this Court in Joseph v. State of Kerala [2005 (4) KLT 504]. The said decision, as also the decision in Balakrishnan Nair v. Government of Kerala [2005 (2) KLT 485], has been relied on to contend that any 'tree' would be covered under the notification issued under the Trees Act. In such circumstance, it is the contention of the learned Special Government Pleader that though restoration was ordered as per Exhibit P1 judgment, the competent authority under the Trees Act was perfectly justified in issuing Exhibit P8 notification. 3. The manner in which the possession of 12.16 acres of land in Tharur Village of Alathur Taluk in Palakkad District was restored to the W.A.No.1379 of 2012 - 3 - respondent is detailed in the judgment of the learned Single Judge. Suffice it to say that by Exhibit P1, a Miscellaneous First Appeal filed against the order of the Forest Tribunal, Palakkad by the respondent herein was allowed, by virtue of which the subject lands were restored to the respondent. The challenge in the said first appeal was against the findings of the Tribunal that the property was not entitled to be cultivated and as such the exemption under Section 3 (3) of the Vesting Act was not available to the respondent herein. It was the contention of the respondent before the Division Bench that there were three other cases similar to that of the respondent, in which the entitlement for exemption under Section 3(3) of the Vesting Act was found in favour of the parties in possession. Though in one of the cases the finding of the Forest Tribunal itself had become final by reason of the State not filing any appeal, in another the State had filed an appeal, which was dismissed as per judgment dated 26.08.1986 in M.F.A.No.569 of 1981. Still another order of the Forest Tribunal declining exemption to certain extents of lands was challenged by the applicant W.A.No.1379 of 2012 - 4 - before this Court in M.F.A.No.648 of 1988, which again stood allowed by judgment dated 29.07.1994. 4. In Exhibit P1 the description of the property as “valarthukadu paramba” in Exhibit A1 document of 1959 was found to be an indication that the property was “paramba”. It was held that the Tribunal merely relied on the report of the Commissioner that there was no cultivation at the time of his visit. This Court found that the intention to cultivate the land could not be totally said to be absent on the report of the Commissioner that there was no cultivation as such. The basis for granting exemption was the 'intention' and not factum of 'existing cultivation'. In any event, finding that most of the portions of the “Kappikkunnu Malavaram”, in which the respondent's property is also situated, had been found to be entitled to the exemption under Section 3(3) of the Vesting Act, the respondent was also found to be so entitled. 5. We do not think that there was any categoric finding in Exhibit P1 that the land restored to the respondent was not a private forest and that the Vesting Act did not, at all apply to the W.A.No.1379 of 2012 - 5 - said land. In fact, the categoric declaration is that the respondent being similar to some other applicants and the lands possessed by all of them, having been held to be entitled to the exemption under Section 3 (3) of the Vesting Act, the respondent too is so entitled. To be entitled for exemption under Section 3(3), necessarily the land should be private forest coming under the Vesting Act. We do not think, the learned Single Judge was correct in holding that Exhibit P1 categorically found that the subject land was not private forest. 6. The next question arising is as to the applicability of the Trees Act. Having found that the subject land is a private forest under the Vesting Act, though entitled to exemption, the decision in Joseph's case (supra) would apply on all fours. The exemption granted from vesting under the Vesting Act would have no relevance in deciding the validity of the notification issued under the Trees Act. Going by Explanation-I of Section 5(2) of the Trees Act as also the decisions in Balakrishnan Nair (supra) and Joseph (supra), the term “tree” shall include any species of tree, which would take in rubber trees also. W.A.No.1379 of 2012 - 6 - 7. The issue now posed before us is as to the validity of the notification, which has to be decided under the provisions of the Trees Act, since we have found that the same is applicable. We extract herein below Section 5 of the Trees Act: “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 (b) the tree is dead, diseased or windfallen: Provided that the provisions of this sub-section shall not be deemed to prevent the pruning of any tree as required by ordinary agricultural or horticultural practices. (2) 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 destroyed any tree in any area specified in the W.A.No.1379 of 2012 - 7 - notification under sub-section (1) on any of the grounds specified therein. Explanation I.- For the purposes of this section, the term “tree” shall include any species of tree. Explanation II.- 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 private forest as defined in the Kerala Private Forests (Vesting and Assignment) Act, 1971”. 8. Exhibit P8 is the notification issued under sub-section (1) of the aforementioned Section 5, that, no tree standing in the area specified in the Schedule to Exhibit P8 shall be cut, uprooted, burnt or otherwise destroyed except on the grounds stipulated in clause (a) and clause (b) of sub-section (1) of Section 5. The specific prayer in Exhibit P9 made by the respondent before the authority was that the rubber trees in the property are no longer capable of producing yield, by reason of age, and they have to be cut and removed for the purpose of planting fresh rubber trees. We notice that the exemption provided under the Vesting Act is specifically on the ground of the lands being held W.A.No.1379 of 2012 - 8 - with an intention to cultivate the same. It necessarily postulates a permission for cultivation, when the exemption has been granted. By Exhibit P1, the exemption is abundantly clear and the restoration too was effected on the basis of Exhibit P1.The State having not challenged Exhibit P1, the restoration of land on the basis of the intention to cultivate has become final. 9. The attempt of the authorities, now, on the ground of ecological imbalance would lead to a consequence of the respondent being not able to enjoy the fruits of such restoration. We cannot permit that; nor is that the purpose that is emanating from the Trees Act and the provisions thereof. We notice that Exhibit P8 notification has, by nature of an exception, extracted the stipulations in clauses (a) and (b) of sub-section (1) of Section 5. The exceptions provided are with respect to a tree which constitute a danger to life or property and when the tree is dead, diseased or windfallen. The rubber trees having fully yielded and not being viable to be maintained thereafter, definitely would fall under the said stipulation. W.A.No.1379 of 2012 - 9 - 10. Particularly with reference to rubber plantations and generally in agricultural parlance, the operation is referred to as “slaughter tapping”, where the trees having no further yield are tapped one last time and cut away and new saplings planted thereon to facilitate growth of a plantation leading to further yield. Under the Trees Act, we are of the opinion that a cultivation cannot be allowed to be totally eradicated, especially when the exemption contemplated under the Vesting Act is with reference to the intent to cultivate. Exhibit P6 mahazar dated 23.08.2004, prepared at the time of restoration indicates existence of 1200 rubber trees in the property of 20 years of age. We are again 9 years from that date. The normal yielding life of a rubber tree is 20-25 years, making these trees virtually dead. Tending such aged trees would be not financially viable by reason of absence of yield; making them virtually dead. In such circumstances, we are inclined to hold that Exhibit P8 notification though would be applicable to any other trees existing in the subject land, the respondent would be entitled to cut and remove the rubber trees planted W.A.No.1379 of 2012 - 10 - thereon, which, according to him, have stopped yielding, since the said activity comes under the exception provided in Section 5 of the Trees Act and Exhibit P8. 11. Exhibit P1 having found that the subject land is entitled to exemption under the Vesting Act and we having found that despite that the Trees Act would be applicable, we are of the opinion that the rubber trees are to be cut and removed under the supervision of the Forest authorities. The appropriate authority under the State shall, hence, issue notice to the respondent and prepare a mahazar of the trees standing in the subject property and also record the number of trees that the respondent points out as being liable to be slaughter tapped. The respondent shall cut and remove only those trees which are being slaughter tapped, as covered under the mahazar and specifically pointed out by the respondent. The respondent shall also within a reasonable time, ensure planting of fresh saplings. The authorities of the Forest Department also shall prepare a mahazar thereon after the said activity is completed. We make it clear that the order granted W.A.No.1379 of 2012 - 11 - under this judgment is only to cut and remove the rubber trees which are slaughter tapped and no other trees, if any, standing in the property shall be cut or removed. The judgment of the learned Single Judge to the extent we have noticed above is set aside. The Writ Appeal, hence, is partly allowed; but, however, confirming the order of the learned Single Judge in permitting cutting of the rubber trees, though for different reasons. No costs. Sd/Manjula Chellur, Chief Justice Sd/K.Vinod Chandran, Judge. vku/- ( true copy )