V.A. Jacob and V.A. Sebastian v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 13TH FEBRUARY 2008 / 24TH MAGHA 1929 OP.No. 24350 of 1999(W) ----------------------- PETITIONERS: - ------------ 1. V.A. JACOB, S/O. ABRAHAM, VALUMANNEL, THALIPARAMBA (PO), KANNUR DISTRICT. 2. V.A. SEBASTIAN, S/O.ABRAHAM, VALUMANNEL, TALIPARAMBA (PO), KANNUR DISTRICT. BY ADV. SRI.V.C.JAMES - SRI.GEORGE MECHERIL RESPONDENTS: ------------- 1. THE STATE OF KERALA REP. BY ITS CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, FOREST ENVIRONMENT & WILDLIFE (E) DEPT., GOVERNMENT OF KERALA, SECREATARIATE, THIRUVANANTHAPURAM. 3. FOREST RANGE OFFICER, TALIPARAMBA, KANNUR DISTRICT. BY SPL. GOVERNMENT PLEADER SRI. RENJITH THAMPAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 13/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.40855 OF 1999 IN OP.NO.24350 OF 1999-W DISMISSED 13.2.2008. SD/= P.N. RAVINDRAN, JUDGE. APPENDIX PETITINERS' EXHIBITS: EXT.P1 COPY OF THE PROCEEDINGS NO.L3-76556/92 DTD 23.2.95 OF THE DISTRICT COLLECTOR, KANNUR. EXT.P2 COPY OF THE RELEVANT PORTION OF THE NOTIFICATION PUBLISHED IN THE KERALA GAZETTE (EXTRA ORDINARY) DATED 1.1.1986. EXT.P3 COPY OF THE JUDGMENT DTD 7.8.96 REPORTED IN JT 1996(7) SC 462. /TRUE COPY/ cl ## **P.N. RAVINDRAN, J.** **--------------------------------------------------------------O.P.NO.24350 OF 1999-W -------------------------------------------------------------Dated this the 13[th] day of February, 2008.** ## **JUDGMENT** The petitioners, who own different parcels of lands situated in R.S.No.292/1A of Naduvil Amsom, Taliparamba Taluk, Kannur District challenge Ext.P2 notification dated 30.12.1985 issued under subsection (1) of Section 5 of the Kerala Preservation of Trees Ordinance, 1985. The petitioners have also prayed for a direction to the respondents to modify Ext.P2 notification by giving them permission to fell such of those trees which are not referred to in Section 2(e) of the Kerala Preservation of Trees Act 1986 (Act 36/1986) which replaced the Kerala Preservation of Trees Ordinance, 1985. 2. It is not in dispute that the application made by the petitioners to the District Collector under the provisions of the Kerala Land Utilisation Order, 1967 for permission to convert the Cardamom Plantation into a coconut garden was rejected by Ext.P1` order dated 23.2.1995. It is also not in dispute that the revision petitions filed before the Land Revenue Commissioner and the OP.NO.24350/1999 . 2 State Government did not meet with success and that Ext.P1 has become final. The District Collector has in Ext.P1 observed as follows: “As directed by Hon'ble High Court in its interim order dated 24.6.1988, the District Collector inspected the Cardamom plantations - 7 acres owned by Sri.V.A. Jacob and 8 acres owned by Sri.V.A. Sebastian at R.S.291/1A of Naduvil Village on 18.7.88 along with Assistant Director, Survey (Resurvey), Kannur, Assistant Director of Agriculture, Taliparamba, Deputy Collector (Housing), Tahsildar, Talipapramba Village Officials of Naduvil and Sri.V.S. Sebastian, one of the petitioners. His site inspection report reads as follows: There is thick forest growth in the entire area. In the plot belonging to both Jacob and Sebastian, there are large number of big trees among the forest growth. The Cardamom plants said to have been planted in the area have been neglected for long period and so it cannot be stated to be properly maintained now. In the area belonging to Sri. Kudakachira Cheriyan, where conversion was allowed as per the orders of the Government in G.O.Rt.No.1831/79/RD dated 5.12.79 no plantation is seen to have been raised after the removal of the tree growth. In the land of Smt. Mariyamma and Job where conversion was allowed by the Collector, as per order dated 16.1.78, some coconut and areca seedlings are seen planted. It has not been raised as a plantation even though years have passed. No pepper vine plants are seen planted in the area. On inspection, I find that the area belonging OP.NO.24350/1999 . 3 to Sri. Jacob and Sebastian is really fit for cardamom plantation if proper attention is given and that it will not be a wise step to permit the petitioners to cut and remove the trees from the hill top as it will help soil erosion and may even affect the weather condition of the area”. The District Collector has in Ext.P1 also observed as follows: “The petitioner's intention is to replace Cardamom crops with pepper and coconut. The Divisional Forest Officer, Thalassery has reported that the land sought for conversion is covered with trees with an age of 15 years to 100 years and the land is situated above 1500 feet from sea level. For the cultivation of the land with coconut the tree growth in the area has to be cleared off. The Divisional Forest Officer, Thalassery in his letter No.A.9658/84 dated 7.12.84 had further reported that the felling of trees from this area may cause soil erosion and land slides. Therefore, the tree growth in the land sought for conversion should not be cleared off for cultivating the land with pepper and coconut. Therefore I am of the view that if permission is granted for the conversion of Cardamom crop to pepper and coconut, the very purpose of the limitation and restriction provided under the Kerala Land Utilisation Order itself will be defeated.” 3. A reading of Ext.P1 discloses that the lands belonging to the petitioners is situated about 1500 feet above the sea level, that there are trees aged 15 to 100 years therein and that for OP.NO.24350/1999 . 4 cultivation of the lands with coconut palms, the entire tree growth in the lands will have to be cleared off. The District Collector has also adverted to the views of the Divisional Forest Officer, Thalassery, who was of the opinion that if the tree growth in the lands is cleared off, it will cause soil erosion and lead to land slides. 4. While the petitioners' application under the Kerala Land Utilisation Order, 1967 was pending, Ext.P2 notification dated 30.12.1985 was issued and published in the Kerala Gazette (Extra Ordinary) dated 1.1.1986, prohibiting the cutting of the trees standing in the lands belonging to them and the remaining portion of the property locally known as “Valumannel Estate” situated in R.S.No.292/1A of Naduvil Amsom, Taliparamba Taluk, Kannur District. The petitioner have in this original petition filed on 29.9.1999, nearly 14 years after Ext.P2 notification was issued and more than four years after Ext.P1 order was passed by the District Collector, challenged Ext.P2 notification on the ground that it has been issued on extraneous considerations and is malafide. The petitioners contend that permission had been given to the owners of the lands situated on three sides of the lands belonging to them to cultivate crops OP.NO.24350/1999 . 5 other than Cardamom. The petitioners also contend that the notification issued under Section 5 of the Act can apply only to trees defined in Section 2(e) of the Act and therefore the respondents are bound to modify Ext.P2. 5. I heard Sri. George Mecheril, the learned counsel appearing for the petitioners and Sri.Renjith Thampan, the learned Special Government Pleader appearing for the respondents. The learned counsel for the petitioners contended that in the light of the principles laid down by the Apex Court in **State of Kerala v. M.N. Sankara Narayanan and others** (JT 1996 (7) SC 462 ), the respondents are bound to modify Ext.P2 so as to enable the petitioners to cut and remove trees other than those defined in Section 2(e) of the Act. Per contra, the learned Special Government Pleader appearing for the respondents relying on the decisions of this Court in **Mathew v. D.F.O** (1997(1) KLT 61), **Balakrishnan Nair v. Government of Kerala** (2005(2) KLT 485) and **Joseph v. State of Kerala** (2005 (4) KLT 504) contended that the term “tree” occurring in Section 5 of the Act, is not confined to the trees enumerated in Section 2 (e) of the Act. The learned Special Government Pleader also relied on Explanation 1 to Section 5 of the OP.NO.24350/1999 . 6 Act in support of his contention. The learned Special Government Pleader further contended that as Ext.P2 notification was issued on 30.12.1985 and published on 1.1.1986 this original petition filed on 29.9.1999 is highly belated. The learned Special Government Pleader also submitted with reference to Ext.P1 that if the petitioners' prayers are granted, it will adversely affect the ecological balance of the locality. 6. I have considered the rival contentions. A learned Single Judge of this Court ( K.S. Radhakrishnan, J. as his Lordship then was) in **Mathew v. D.F.O** (1997(1) KLT 61) held that the term tree in Section 5 of the Act includes all species of trees and that the intention of Section 5 of the Act is to prohibit and not to restrict the cutting of trees in private forests /Cardamom Hills Reserve/ in any other area cultivated with cardamom. It was held:- “Therefore operation of S.5 is all together on a different context. Unlike S.4, S.5 is meant to prohibit and not restrict cutting any tree in private forests as well as in Cardamom Hills Reserve or in any other area cultivated with cardamom. It has got a specific object to achieve. Purpose for which the said Section was introduced was that there was indiscriminate felling and destruction of trees in the State of Kerala resulting in considerable soil erosion OP.NO.24350/1999 . 7 and destruction and loss of timber wealth in the state. Therefore if trees are cut indiscriminately, apart from trees mentioned in S.2(e), that will lead to soil erosion and would cause large scale destruction and loss of timber wealth in the private forests as well as in the Cardamom Hills Reserve. Therefore, the definition of 'tree' has to be understood in a different context when we apply S.5”. 7. The decision in **Mathew v. D.F.O (cited supra)** was uphold in W.A.No.1906 of 1996 and later approved by a Division Bench of this Court in **Joseph v. State of Kerala** (2005 (4) KLT 504). In **Balakrishnan Nair v. Government of Kerala** (2005(2) KLT 485) a Division Bench of this Court after referring to the decision in **Mathew v. D.F.O** (supra) and the judgment of a Division Bench of this Court in W.A.No.1906 of 1996, repelled the contention that the term “tree growth” refers only to wild growth and not to plantations and held that the State Government can issue a notification under Section 5 of the Act to preserve the tree growth. 8 In proceedings under the Kerala Private Forests (Vesting and Assignment) Act 1971, a Division Bench of this Court in M.F.A.No.152 of 1977 held that 25 acres out of a larger area of 3000 acres was not a private forest vested in the State Government. On appeal OP.NO.24350/1999 . 8 filed by the land owners, the Apex Court in **M.N. Sankara Narayanan v. State of Kerala and another,** (AIR 1987 SC 47) held that the appellant before the Apex Court was entitled to retain an area of 60 acres of his choice out of the 3000 acres claimed by him. The decision of the Division Bench of this Court in M.F.A.No.152 of 1977 was modified to that extent. As a result of the decision of the Apex Court, the appellant in the decision reported in **M.N. Sankara Narayanan v. State of Kerala and another** ( **supra** ) was entitled to retain 60 acres out of the 3000 acres of land. While the appeal filed by the land owners from the decision of this Court in M.F.A.No.152/1977 was pending in the Apex Court, the Kerala Preservation of Trees Act, 1986 was enacted and brought into force with effect from 18.6.1983. After the decision of the Apex Court, a notification dated 19.7.1991 under Section 5 of the Act was issued prohibiting the felling of trees in the entire area of 3000 acres. The said notification was successfully challenged in this Court. The State of Kerala carried the matter in appeal and the said appeal was disposed of by the Apex Court by the decision in **State of Kerala & others v. M.N. Sankara Narayanan and others (JT 1996 (7) SC 462)** . In view of the decision of the Apex Court in **M.N. Sankara Narayanan v. State of Kerala and another (AIR** OP.NO.24350/1999 . 9 **1987 SC 47)** wherein the Apex Court had held that as 60 acres has been declared as not a private forest, the Apex Court in the later decision directed the State Government to modify the notification by restricting its operation to trees which are referred to in Section 2(e) of the Act. The Apex Court held as follows: “The object of the Preservation Act is to preserve forestation and not de-forestation. Consequently though notification was published prohibiting the respondents from felling the trees, in the circumstances, we are of the view that the notification should be suitably modified as under. The competent authority is directed to give permission to the respondents to fell such of the trees which are not referred to in Section 2(e) of the Preservation Act and if other trees are not of such value, then necessary permission may be given to the respondents to fell the trees so as to enable him to cultivate cardamom plantation or any other plantation operations permissible under the law so that respondents would enjoy 60 acres of the land, the benefit flowing from the earlier judgment. We hold that the direction would ensue compliance of the Preservation Act and at the same time the right given to the respondents to enjoy 60 acres of land would be sustained” 9. In the instant case, it is not in dispute that the lands OP.NO.24350/1999 . 10 belonging to the petitioners are lands cultivated cardamom and also supports abundant tree growth. The consequences that would follow, if the petitioners are allowed to clear off the tree growth in their lands as has been set out in detail in Ext.P1. The petitioners cannot relying on the decision of the Apex Court in **State of Kerala v. M.N. Sankara Narayanan and others (JT 1996 (7) SC 462)** contend that Ext.P2 notification is liable to be modified so as to enable them to cut and remove the trees other than those mentioned in Section 2(e) of the Act. As noticed earlier, the direction issued by the Apex Court in the aforesaid decision was rested on the peculiar facts of the case and was in respect of the lands which the Apex Court had declared is not a private forest vested in the Government. This Court has in **Mathew v. D.F.O** (1997 (1) KLT 61) and in **Joseph v. State** (2005 (4) KLT 504) held that Section 5 is meant to prohibit and not to restrict cutting of trees in cardamom hills reserve or in any other area cultivated with cardamom. Section 5 was enacted with the specific purpose of prohibiting indiscriminate felling and destruction of trees which results in soil erosion and loss of timber wealth. As noticed by this Court in the decisions referred to above, the Kerala Preservation of Trees Act, 1986 was enacted with a view to achieve the laudable OP.NO.24350/1999 . 11 object of preventing the indiscriminate felling of trees. Ext.P1 order passed by the District Collector discloses that there are trees aged 15 to 100 years in the lands belonging to the petitioners. I am therefore, not inclined to accept the contention of the petitioners that in the light of the decision of the Apex Court in **State of Kerala v. M.N. Sankara Narayanan and others (JT 1996 (7) SC 462)** Ext.P2 notification is liable to be modified. For the reasons stated above, I hold that the petitioners are not entitled to any relief in this original petition. The original petition accordingly fails and it is dismissed. No costs. ## **P.N. RAVINDRAN, JUDGE.** **cl** OP.NO.24350/1999 12 . ## **P.N. RAVINDRAN, J.** ## **O.P.NO.24350 OF 1999-W** ## **JUDGMENT** **13[th] February, 2008.**