Thomas Philip and Delta Thomas Infrastructure Projects Pvt Ltd v Divisional Forest Officer and Forest Range Officer

1 _**WP(C).20334/18**_ ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY,THE 24TH DAY OF OCTOBER 2018 / 2ND KARTHIKA, 1940 WP(C).No. 20334 of 2018** ## **PETITIONER/S:** |**1**|**THOMAS PHILIP**| |---|---| ||**CHERUPULICHIYIL HOUSE, CHERUKULANJIP.O., RANNI,**| ||**PATHANAMTHITTA 689 673.**| |**2**|**MS.DELTA THOMAS INFRASTRUCTURE PROJECTS PVT LTD**| ||**REGISTERED OFFICE AT CHERUKULANJI,**| ||**VADASSERRIKARA,RANNI, PATHANAMTHITTA, REPRESENTED BY**| ||**ITS DIRECTOR,BETSY PHILIP**| **BY ADVS. SRI.PHILIP J.VETTICKATTU SRI.VINEETH KURIAKOSE** ## **RESPONDENT/S:** |**1**|**THE DIVISIONAL FOREST OFFICER**| |---|---| ||**KOZHIKODE 673 001.**| |**2**|**THE FOREST RANGE OFFICER**| ||**PERUVANNAMOOZHI, KOYILANDI, KOZHIKODE 673 528.**| ## **OTHER PRESENT:** ## **SPL GP SANDESH RAJA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 8.10.2018, THE COURT ON 24.10.2018 DELIVERED THE FOLLOWING:** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No. 20334 of 2018 ----------------------------------------------Dated this the 24[th] day of October, 2018** ## **JUDGMENT** The petitioners have approached this Court seeking the following reliefs: - _“i. issue a writ of certiorari or any other appropriate order, writ or direction quashing Exhibits P6 and P7._ - _ii. issue a writ of mandamus or any other appropriate order, writ or direction directing the 2[nd] respondent to issue an acknowledged copy of Exhibit P5 declaration._ - _iii. issue a writ of mandamus or any other appropriate order, writ or direction directing the respondents not to interfere with the cutting and removal of trees covered by Exhibit P5 declaration.”_ 2. Heard learned counsel for the petitioners and the learned Special Government Pleader for Forest Sri.Sandesh Raja. 3. Petitioner, who is the owner in possession of 4.33 acres of land in Sy.Nos.25/4 and 66/1, 2A & B (Re.Sy.No.1 and 76) of Kottur Village, Koyilandi Taluk, Kozhikode District, challenges the order passed by the 2[nd] respondent, which has been confirmed in appeal by Exhibit P7. The contention is that going by the provisions of Section 6 of the Kerala Promotion of Tree 3 _**WP(C).20334/18**_ Growth in Non-Forest Areas Act, 2005 (for short, 'the Act'), the orders passed by the respondents are totally incompetent. It is stated that a reading of the preamble of the Act along with the provisions of the Act itself would make it clear that the intention of the legislature was to promote the planting of trees in non forest areas and that an enquiry in the nature of what has been conducted by the 2[nd] respondent is completely incompetent in view of the fact that the trees stand in non notified areas. The learned counsel places reliance on the decisions of the Apex Court in _**Union of India v. Elphinstone Spinning and Weaving Co.Ltd. and others**_ [(2001)4 SCC 139] and _**Chief Settlement Commissioner v. Om Parkash and others**_ [AIR 1969 SC 33] in support of his contention. 4. A statement has been filed by the 1[st] respondent. It is stated therein that going by Section 6(5) of the Act, the owner of land in a non notified area has to file a declaration before cutting or transporting of any specified tree. On getting such declaration, the Authorised Officer has to acknowledge the same. If no acknowledgment is received from the Authorised Officer, the owner can cut and remove the tree or transport the tree/timber listed in the declaration. It is stated that in the instant case, on receipt of the declaration, the 2[nd] respondent had conducted an inspection and rejected the permission sought for in the declaration. It is stated in paragraph 7 of the statement as follows: 4 _**WP(C).20334/18**_ _“7. It is submitted that the land in the application is part of a mountainous terrain and part of a water shed which support the water table of the surrounding area. The above land and surrounding areas are under tree cover dominated by Irul, Maruthu, Chedachi etc. and with shrubs and ground vegetation. The above tree cover is important for preventing soil erosion, reducing run of and enhancing perculation of water for recharging ground water table. The preamble of the Act 46 of 2005 states that it is necessary to maintain environmental stability by cultivation of trees in non forest areas. It also states that non forest areas are to be maintained under tree cover for checking soil erosion and denudation of the catchments of rivers for mitigating flood and droughts. The order-Exhibit P6 was issued by the 2[nd] respondent in view of above spirit.”_ 5. The learned Special Government Pleader appearing for the Forest Department would contend that a close reading of Section 6 of the Act would make it clear that the submission of a declaration in terms of Section 6 is not an empty formality and that an order of permission is contemplated in terms of the Act and the Rules made there under. It is stated that where the Authorised Officer is of the opinion that there is reasonable ground to reject the application, the same can be rejected for appropriate reasons. The learned Special Government Pleader also places reliance on the decisions of the Apex Court in _**Laurel Energetics Pvt. Ltd. v. Securities and Exchange Board of India**_ [2017 KHC 6456] and _**Atma Ram Mittal v. Ishwar Singh Punia**_ [1988 KHC 1046] in support of the contention that statement of objects and reasons 5 _**WP(C).20334/18**_ accompanying a Statute can be used to determine the true meaning and effect of substantive provisions of the Statute. It is contended that where there is ambiguity in the words used in a provision the object of the provision can be ascertained by the use of extrinsic aid including the preamble. It is further submitted, relying on the decision of the Apex Court in _**M/s.Girdhari Lal and Sons v. Balbir Nath Mathur and others**_ [1986 KHC 744], that the court must strive to interpret the statute as to promote and advance the object and purpose of the enactment. 6. I have considered the contentions advanced on either side. 7. The Act and Rules provide a right procedure with regard to the consideration of the declaration. The provisions of Section 6(5) of the Act reads as follows: ## _“6._ _**Right of owners to cut and remove trees in nonnotified areas in non-forest land.-** (1) …..._ _(5) Where a specified tree is to be cut or any timber of a specified tree is to be transported from any non-forest land to any other place, the owner of such tree shall, before cutting the tree or transporting the timber, as the case may be, file before the Authorised Officer having jurisdiction over the area, a declaration containing details such as the survey number of the land from which the tree is to be cut, number of trees, species of trees, quantity of timber and the place to which such timber is being transported, either directly or send it by registered post with acknowledgment due.”_ 6 _**WP(C).20334/18**_ 8. The Kerala Preservation of Trees Act, 1986 governed the grant of permission for cutting of trees till the 2005 Act came into force. The said Act imposed stringent restrictions on the cutting of the specified trees as defined there under. The Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 was enacted by the legislature, in it's wisdom, relaxing the restrictions as to cutting of trees in non notified areas. Section 6(1) of the Act reads as follows: _“6._ _**Right of owners to cut and remove trees in nonnotified areas in non-forest land.** - (1) Notwithstanding anything contained in any other law for the time being in force and subject to the other provisions of this 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;”_ 9. The intention of the legislature as discernible from the substantial provision of the Statute was to remove the strengent restrictions imposed on the cutting and removal of trees standing on non forest lands. A reading of the provisions of Section 6 of the Act with Rule 4 of the Kerala Promotion of Tree Growth in Non-Forest Areas Rules, 2011 would clearly indicate that the enquiry contemplated under the provisions of the Act, the Rules are confined to the verification of the details given in the declaration. The environment impact and the other connected issues are matters to be considered by the appropriate authority while affording environmental clearance for the starting of the quarry. 7 _**WP(C).20334/18**_ 10. The learned Government Pleader would contend that there is a specific clause in the form available in the Rules in which the declaration is to be furnished providing for an order of the Authorised Officer. It is therefore contended that it is clearly pre-supposes a right in the Authorised Officer to either accept or reject the permission to cut the trees. It is stated that read along with the purpose of the Statute as evident from the preamble, the contention that the Authorised Officer has to automatically issue permissions cannot be accepted. 11. A reading of Section 6 of the Act would make it clear that an application for permission to cut and remove any tree from a notified areas and permission to cut and remove trees in non notified areas are dealt with in a different and distinct manner. In respect of the specified trees in non notified areas, what is contemplated is only a declaration. The verification and the permission, if any, contemplated is confined to a verification as to whether the tree in question is actually standing in the premises as stated in the declaration. A further roving enquiry into the desirability of the cutting of the tree is not provided by the enactment. I am of the opinion that this Court cannot go beyond the clear words of the Statute to discern any such further powers on the basis of what is stated in the preamble or the objects and reasons to the Act. In the absence of specific provisions granting powers to the Authorised Officer to make inspections as to the desirability of the cutting of the trees, I am 8 _**WP(C).20334/18**_ of the opinion that the rejection on the ground as mentioned in Exhibits P6 and P7 is untenable. The impugned orders are therefore set aside. There will be a direction to the respondents to permit the petitioners to cut and remove the trees after a verification that the trees are standing in the portion of the property where the quarry is sought to be located and subject to the specific conditions of replanting as has been provided for in the environmental clearance granted to the petitioners. It is made clear that any inspection for ensuring compliance with the statements in the declaration can be carried out by the respondents. The writ petition is ordered accordingly. Sd/- **ANU SIVARAMAN JUDGE** _vgs_ 9 _**WP(C).20334/18**_ ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF JENMOM SALE DEED NO.1228/2016 OF KOORACHUNDU SRO, DT. 3/8/2016 EXHIBIT P2 TRUE COPY OF LAND RECEIPT ISSUED BY THE VILLAGE OFFICE, KOTTUR DT. 9/5/2018 EXHIBIT P3 TRUE COPY OF POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICE, KOTTUR VILLAGE DT. 11/5/2018 EXHIBIT P4 TRUE COPY OF CONSENT GIVEN BY THE 2ND PETITIONER IN FAVOUR OF THE 1ST PETITIONER FOR DEVELOPING THE LAND EXHIBIT P4(A) TRUE COPY OF LETTER OF INTENT ISSUED BY THE MINING AND GEOLOGY DEPARTMENT DT. 20/9/2017 EXHIBIT P5 TRUE COPY OF DECLARATION IN FORM NO.1 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DT. 15/5/2018 EXHIBIT P6 TRUE COPY OF ORDER DATED 25/5/2018 PASSED BY THE 2ND RESPONDENT EXHIBIT P7 TRUE COPY OF ORDER DATED 8/6/2018 PASSED BY THE 1ST RESPONDENT CONFIRMING EXT.P6** EXHIBIT P8 COPY OF LETTER DATED 30.5.2018 SENT BY THE PETITIONER TO THE FOREST DIVISIONAL OFFICER, KOZHIKODE.