Unnikrishnan.R. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945** ## **WP(C) NO. 43370 OF 2023** ## **PETITIONER:** UNNIKRISHNAN.R. AGED 56 YEARS S/O.LATE RAGHAVAN P.A., PEZHUMKODU HOUSE, NECHUR P.O., THOLANOOR VILLAGE, KUTHANOOR-II, PALAKKAD DISTRICT, PIN - 678722 BY ADVS. DINESH MATHEW J.MURICKEN VINOD S. PILLAI MOHAMMED THAYIB N.M. NAYANA VARGHESE RIA VARGHESE JERRY PETER SEBA SHAJAHAN ## **RESPONDENTS:** 1 STATE OF KERALA REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, ROOM NO.117A, 1ST FLOOR, ANNEXE-I, SECRETARIAT, STATUE JUNCTION, THIRUVANANTHAPURAM GENERAL.P.O., THIRUVANANTHAPURAM DISTRICT, PIN - 695001 2 THE DIVISIONAL FOREST OFFICER DIVISIONAL FOREST OFFICE, KOTTEKULAM-MELARCODE, FOREST OFFICE ROAD, NENMARA.P.O., PALAKKAD DISTRICT, PIN - 678508 3 THE FOREST RANGE OFFICER FOREST RANGE OFFICE, ALATHUR NENMARA.P.O., PALAKKAD DISTRICT, PIN - 678508 **OTHER PRESENT:** SPL.GP - T.P.SAJAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: : 2 : W.P.(C). No.43370 of 2023 ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - **W.P.(C) No.43370 of 2023** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of February, 2024 ## **JUDGMENT** The petitioner has approached this Court challenging Exts. P9 and P10 orders, whereby the application submitted by the petitioner has been rejected only in the light of Section 5 of the Kerala Preservation of Trees Act, 1986. 2. The petitioner submits that the property covered by Ext.P1 partition deed was the subject matter of the proceedings before the Forest Tribunal and as per Ext.P2, the said property was exempted under Section 3(2) of the Kerala Private Forests (Vesting & Assignment) Act, 1971, which was confirmed by this Court in Exts.P3 and P4. A certificate of purchase for fixation of tenure for the purchase of janmam right was issued by the Land Tribunal, Coyalmannam as per Ext.P5. Later, the property was restored to the petitioner as per Ext.P7 mahazar dated 18.05.2013. Thereupon the petitioner submitted an application before the 2[nd] respondent seeking permission to cut and remove the rubber trees in the above said property, which is more than 40 years old, for the purpose of replanting. The said application was disallowed by the 3[rd] W.P.(C). No.43370 of 2023 : 3 : respondent as per Ext.P8 relying on Section 5(1) of the Kerala Preservation of Trees Act, 1986. Though an appeal was preferred before the 2[nd] respondent, the same was also dismissed as per Ext.P9. Thereafter the petitioner has preferred a revision petition, which was also rejected by the 1[st] respondent as per Ext.P10 order. 3. The petitioner submits that the issue raised in this writ petition is covered in his favour by the judgment in W.P.(C) No.38335 of 2023 and the judgment of this Court in _**State of Kerala and Another v. Antony Kannattu [2013 (2) KHC 889]**_ , wherein paragraphs 8 and 9 reads as follows: _“8. Exhibit P8 is the notification issued under subsection (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 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_ : 4 : W.P.(C). No.43370 of 2023 _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 subsection (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.”_ Petitioner further submits that relying on the judgment in _**Antony Kannattu**_ 's case cited supra _**,**_ this Court in _**Aboobacker T.K v. Forest Range Officer, Ottapalam & Others**_ reported in _**[2016 (4) KLJ 510]**_ considered a similar issue and granted permission to cut and remove rubber trees. Paragraphs 8,9,10 and 14 of the judgment reads as follows: _“8. It is well accepted that rubber trees are grown for extracting latex, and the trees for the purpose of extracting latex have a tenure, and it is also an accepted_ : 5 : W.P.(C). No.43370 of 2023 _principle, the trees can be tapped at the most for a period of 25 years. Thereafter, slaughter tapping is done and the trees are cut and removed and thereafter new saplings are planted. This is the procedure followed in rubber plantation. After the maximum period of drawing latex and the slaughter tapping is effected, the trees lose its value as an agricultural crop, and it can be termed as 'dead' so far as its use is concerned. The Chambers Concise Dictionary defines 'dead' as follows: “no longer alive; inanimate; out of play; out of use; obsolete; inactive; unproductive etc._ _9. In that view of the matter, taking note of Ext.P1 order of the Tribunal, which has become final, and that the petitioner intends to cut and remove the rubber trees standing in the property, and re-plant with new saplings, ought to have passed necessary orders taking into account these vital aspects. Merely because there is a prohibition created under Sec.5 of Act, 1986, that does not mean that the trees cannot be cut and removed at all. Sec.5(1) takes care of cutting and removing of trees on two grounds: (a) the trees constitute a danger to life or property; or (b) the tree is dead, diseased or windfallen._ _10. Therefore, on a reading of the said provision, it is specific and distinct that there is no total prohibition of cutting and removing the trees. On the other hand, it is an enabling provision for cutting and removing trees under the specified circumstances mentioned thereunder. As discussed above, rubber trees, as an agricultural produce, have a maximum life. After the_ : 6 : W.P.(C). No.43370 of 2023 _specified period of drawing latex, the trees become defunct and dead in all sense as an agricultural produce. Rubber trees are grown by farmers to secure latex and thereby earn livelihood out of the same. Therefore, when the trees become defunct and dead, livelihood is lost. Every farmer is entitled as of right to cut and remove the trees and plant the area with new saplings. This is the recognized practice so far as the State of Kerala is concerned. True, as provided under Explanation I to Sec.5(2) of Act, 1986, the term “tree” is defined as any species of tree. However, as discussed above, when it has become dead vis-a-vis its utility, it is to be cut and removed._ _11. xxx xxx xxx_ _12. xxx xxx xxx_ _13. xxx xxx xxx_ _14. Taking into account the respective submissions made across the Bar and taking note of the law laid down by the Division Bench of this Court in the aforesaid judgment, Ext.P7 order passed by 3 rd respondent is arbitrary and illegal and therefore it is quashed. Accordingly, petitioner is permitted to cut and remove the rubber trees standing in the property, under the supervision of any forest officials appointed by the competent D.F.O, and it should be ensured that the area is replanted with fresh saplings. The procedure so undertaken by the petitioner shall be scrutinized by the forest officials and sufficient records shall be retained in order to ensure that the directions issued are complied with by the petitioner in its fullest sense.”_ : 7 : W.P.(C). No.43370 of 2023 4. The learned Special Government Pleader refers to the statement filed by the 2[nd] respondent, especially paragraph 9, which reads as follows: “ _It is submitted that even though the petitioner has submitted that he has filed the application to cut and remove the old rubber trees for replanting, he has not submitted any proposal or schedule with an undertaking that the old rubber trees which are cut and removed, new saplings will be planted in accordance with the schedule. So the averments of the petitioner that he wants to cut and remove the old rubber trees for replanting cannot be considered or cutting and removing the rubber trees from the property of the petitioner which is notified u/s Section 5 of the Kerala Preservation of Trees Act. It is submitted that if the petitioner submits a proposal/application for cutting and removing the old rubber trees with a replanting schedule before the Hon'ble court with necessary undertaking that the schedule followed and that no trees other than the old rubber trees will be felled and replanting will be completed within a time frame fixed by this Hon'ble Court and if this Hon'ble court find merit in the above undertaking and directs the respondents to oversee compliance of the replanting schedule and necessary passes for cutting and removing the trees will be issued. The same can be considered by this Hon'ble court as there is an undertaking by the petitioner before this Hon'ble court that the replanting will be carried out.”_ : 8 : W.P.(C). No.43370 of 2023 The learned counsel for the petitioner submits that he is ready and willing to comply with the procedures provided in paragraph 9 of the statement filed by the 2[nd] respondent. In view of the declaration of law as stated above and the undertaking of the petitioner that necessary steps will be taken to comply with the procedures as described in paragraph 9 of the statement filed by the 2[nd] respondent, there will be direction to the 3[rd] respondent to permit the petitioner to cut and remove the trees as requested in the application dated 28.03.2019, after complying with the procedures as undertaken by the petitioner, within a period of one month from the date of receipt of a copy of this judgment. To facilitate reconsideration of the application dated 28.03.2019, Exts.P8 to P10 orders are set aside. The writ petition is disposed of as above. Sd/- **VIJU ABRAHAM JUDGE** sm/ W.P.(C). No.43370 of 2023 : 9 : ## **APPENDIX OF WP(C) 43370/2023** |PETITIONER EXHIBITS|| |---|---| |Exhibit P1|TRUE COPY OF THE PARTITION DEED| ||NO.4012/1984 OF SRO, ALATHUR EXECUTED| ||BETWEEN THE PETITIONERS AND OTHERS DATED| ||23.11.1984| |Exhibit P2|TRUE COPY OF THE ORDER IN O.A.78/1975| ||DATED 07.06.1977 PASSED BY FOREST| ||TRIBUNAL PALAKKAD| |Exhibit P3|TRUE COPY OF THE JUDGMENT IN MFA| ||NO.53/1978 DATED 07.07.1980 PASSED BY THE| ||HIGH COURT OF KERALA| |Exhibit P4|TRUE COPY OF THE ORDER IN R.P.NO.271/1984| ||IN MFA NO.53/1978 DATED 08.11.1993 PASSED| ||BY THE HIGH COURT OF KERALA| |Exhibit P5|TRUE COPY OF THE CERTIFICATE OF PURCHASE| ||NO.800/1978 ISSUED FROM THE LAND| ||TRIBUNAL, COYALMANNAM DATED 21.08.1978| |Exhibit P6|TRUE COPY OF THE JUDGMENT IN| ||O.S.NO.78/2008 PASSED BY THE MUNSIFF| ||COURT, ALATHUR DATED 09.06.2009| |Exhibit P7|TRUE COPY OF THE MAHAZAR PREPARED BY 3RD| ||RESPONDENT DATED 18.05.2013| |Exhibit P8|TRUE COPY OF THE ORDER ISSUED BY THE 3RD| ||RESPONDENT DATED 29.03.2019| |Exhibit P9|TRUE COPY OF THE ORDER NO.C2-2579/19| ||DATED 11.06.2019 PASSED BY THE 2ND| ||RESPONDENT| |Exhibit P10|TRUE COPY OF THE ORDER NO.B1/87/2019-| ||FOREST DATED 29.07.2022 ISSUED BY THE 1ST| ||RESPONDENT| |RESPONDENT ANNEXURES|| |Annexure R2(a)|True copy of the letter No. OA 78/75| ||dated 23.10.1998 of the DFO Nenmara| ||containing the details of vegetation on| ||the schedule property.| |Annexure R2(b)|True copy of the notification GO(P) No.| ||61/12 FWLD dated 30.5.2012| |Annexure R2(c)|True copy of the Order No. A2-1084/16| ||dated 25.5.2016|