Shaji P.Chaly, J
1. Captioned writ petitions are materially connected; filed, raising questions under the provisions of the Kerala Preservation of Trees Act 1986 and Kerala Promotion of Tree Growth in Non Forest Areas Act, 2005, hereinafter called, Kpt Act 1986 and 'Act, 2005'; and challenging the order of refusal to cut and remove the entire trees standing in the property of the petitioners in the first among the writ petitions as per section 6 of the Act, 2005; and non consideration of the applications submitted by the petitioners in the other connected writ petition properly and legally. Therefore, I heard them together and proposed to pass this common judgment.
2. In W.P.© No.2543 of 2021, the following are the contentions raised by the petitioners:
2.1. The petitioners own a total extent of 7.8890 Hectors of rubber plantation in Re.Sy No.162 & 162/2 of Block No.50 of Mangalam Dam village, Alathur Taluk, Palakkad District, as per partition deed No.2735/17 of SRO, Vadakkancherry. The above property, which formed part of a larger extent of 300 acres, was originally obtained by the predecessor-in-interest of the petitioners as per assignment deed No.2099 of 1965 of SRO, Palakkad. The copy of the basic tax receipt in respect of the above property and extract of the basic tax register is produced as Exhibits P1 and P2.
3. According to the petitioners, after the coming into force of the Kerala Private Forest (Vesting and Assignment) Act, 1971, hereinafter called, 'Act, 1971', an extent of 150 acres of land became vested in the Government. Thereafter, as per proceedings dated 20/04/1985 in O.A.No.412/81, the Forest Tribunal, Palakkad exempted an extent of 107 Acres of land, on finding that the owners are entitled to exemption under Sec.3(3) of the Act 1971. Even though the said order was challenged by the Government before this Court by filing MFA No:61/86, the order was substantially affirmed by this Court as per a judgement dated 18.3.1992, evident from Exhibit P3; and thus, by virtue of the aforesaid judgement, the petitioners' predecessors obtained physical possession of the entire extent of 107 acres of land in April 1993.
4. It is submitted that, however, with a view to defeat the owners from enjoying the fruits of restoration, the 1st respondent – State of Kerala, Secretary to Government, Forest & Wildlife Department, Thiruvananthapuram, issued Exhibit P4 notification under Section 5 of the Kerala Preservation of Trees Act 1986, hereinafter called, 'KPT Act, 1986', prohibiting cutting of trees in the area restored to them; but vide Exhibit P5 order dated 16.9.1993 in CMP No.2914 of 1993, this Court rescinded the said notification and permitted cutting and removal of trees with a view to facilitate replanting the property with rubber trees.
5. According to the petitioners, in terms of the undertaking given by the petitioners before this Court, the entire property was planted with rubber trees, and teak trees all along the boundaries; the normal yielding life of a rubber tree is 20 to 25 years and since the yield from the rubber trees planted in 1993 is drastically reduced rendering the trees virtually dead, the petitioners started to cut the rubber trees in order to replant new rubber trees. However, the teak trees existing in the boundary of the properties are causing serious threat to the replanting of rubber on account of the fact that most of the trees are in a diseased condition. That apart, it is submitted that since the rubber trees are already cut, the teak trees now existing in the boundaries are totally exposed and there is every likelihood that the trees will get uprooted during monsoon and winds.
6. Accordingly, the petitioners submitted application before the Range Forest Officer, Alathur Range, Palakkad District – the 3rd respondent, for necessary permission, which was rejected by Exhibits P6 and P7, stating that in the light of Exhibit P4 notification, no such permission can be granted. According to the petitioners, since Exhibit P4 notification is already rescinded, the same does not apply to the property of the petitioners. That apart, as per Exhibit P8 certificate issued by the Divisional Forest Officer, Divisional Forest Office, Nenmara, Palakkad District – the 2nd respondent, it is already certified that the entire extent of land belonging to the petitioners is not notified as forest neither under Section 5 of the KPT Act, 1986, nor any notification issued under it applies to the property as admittedly the same is not a 'private forest'. In State of Kerala v. Abdul Ali [(2013) 2 KLT 881 SC], the Hon'ble Supreme Court declared the law in clear terms that the Government cannot notify the area, which is expressly excluded from the purview of 'private forest' under the Act, 1971 for the purpose of total prohibition of cutting trees under the KPT Act, 1986.
7. According to the petitioners, in the light of the said judgement, Exhibits P6 and P7 are unsustainable and thereupon, petitioners have approached this Court by filing W.P.(C) No.14292/2020, challenging the rejection orders. During the pendency of the above writ petition, the petitioners preferred a statutory appeal, produced as Exhibit P9 dated 16.9.2020 and in view of the filing of the appeal, the writ petition was withdrawn with liberty to pursue the alternate remedy. Pursuant to Exhibit P9 appeal, the 2nd respondent conducted necessary site inspection and issued an order rejecting cutting of trees referring to Exhibit P4 notification; which according to the petitioners has already been cancelled as per Exhibit P5 order by the Division Bench of this Court.
8. Petitioners have also stated that in the judgement rendered by this Court in Ouseph Kuriakose V. Divisional Forest Officer [2020 (6) KLT 419], it is made clear that the Kerala Promotion of Tree Growth in Non Forest Areas Act, 2005, hereinafter called, 'Act, 2005', has relaxed the restrictions on cutting of trees in non- notified areas and therefore, the petitioners are entitled to cut and remove the trees standing in their property except sandalwood trees in view of the provisions contained under Section 6 (1) of the Act, 2005.
9. It is in this background seeking the following reliefs, the writ petition is filed:
(i) To issue a writ of certiorari or any other appropriate writ, order or direction to quash Exhibits P6, P7 & P11 orders to the extent it has rejected the request made by the petitioners for permission to cut and remove teak trees standing in their property in the light of Exhibit P5 order of this Hon'ble Court rescinding the notification.
(ii) To declare that Exhibit P4 notification is not applicable to the land owned by the petitioners having a total extent of 7.8890 hectares situated in (Old Sy No 561/3) Re Sy No 162 & 162/2 of Block No 50 of Mangalam Dam village, Palakkad District.
(iii) To declare that the petitioners are entitled to cut and remove the trees standing in their property except sandalwood trees in view of the provisions contained under section 6 (1) of Kerala Promotion of Tree Growth In Non Forest Areas Act 2005.
iv) to issue a writ of mandamus or any other appropriate writ, order or direction directing the 2nd and 3rd respondents to issue necessary permission to cut and remove the teak trees standing in the property of the petitioners in Re.Sy No. 162 & 162/2 of Block No.50 of Mangalam Dam village, Palakkad District.
v) To pass such other and further orders as are deemed fit and proper in the facts and circumstances of the case.
10. In W.P.(C) No.15384 of 2021, the following are the contentions advanced by the petitioners:
10.1. According to the petitioners, they are close relatives, and are in absolute ownership and possession of a total extent of 21 Acres 41 Cents in Re-survey No. 159, 159/1, 159/3,159/4,159/5, 159/5,159/6 and 159/7in Block No.50 (Old survey No.561/3) of Mangalam Dam village, Alathur Taluk, Palakkad District. The said property formed part of 300 acres originally held by the predecessors-in-interest of the petitioners under a valid registered sale deed No. 2099/1965 of SRO, Palakkad. True copies of the basic tax receipt dated 22.6.2020 issued by the Village Officer, Mangalam Dam Village and possession certificate dated 22.6.2020 issued to the petitioners are produced as Exhibits P1, P2 & P3 and P1(a), P2(a), & P3(a) respectively.
11. It is submitted that out of the 300 Acres, 150 acres were planted with rubber during 1967-1968 and the remaining 150 acres viz., the eastern half was being prepared for planting. While so, the Act, 1971 came into force and the above eastern half was treated as vested under the Act, 1971. These petitioners are also beneficiaries of the tribunal order and first appeal judgement and order referred to in the earlier case and therefore those facts are not repeated. The legal questions raised in the writ petitions are substantially similar, and therefore they are considered together.
12. It is submitted that the planting was completed and the boundaries are also planted with teak trees; the rubber trees are now matured for cutting and removal in order to facilitate re-planting; and the other species are also over grown and are standing dangerous to cultivation and the property; adjacent planters have already resorted to re-planting. Petitioners have also applied for permission to cut and remove the old rubber trees as well as few teak trees, which are creating danger to plantation and property, evident from Exhibit P7.
13. According to the petitioners, they understood from the office of the 2nd respondent that similar applications filed by the adjacent landowners were rejected by the 3rd respondent and the appeal filed before the 2nd respondent was also rejected. Therefore, petitioners filed W.P.(C) No.6670/2021 for a direction to the respondents to consider and pass orders on the application. While so, the applications were returned saying that they are not in proper form. Thereupon, Exhibits P8 series of applications were submitted accompanied by necessary documents. The 3rd respondent rejected the said applications by Exhibit P9 order dated 17.4.2021 saying that Section 5 of the KPT Act, 1986, does not allow him to grant the relief. Thereupon, petitioners preferred appeals before the 2nd respondent, which were also rejected in the same line, produced as Exhibit P10 dated 30.4.2021. In view of Exhibits P9 and P10 subsequently passed by the 2nd respondent, W.P.© No.6670 of 2021 has become infructuous and hence, it was withdrawn.
14. It is contended by these petitioners also that Exhibit P5 is no longer applicable as the same has already been rescinded by this Court. According to them, the Kerala Promotion of Tree Growth in non- forest Areas, Act 2005 permits the landowners to cut and remove trees other than Sandalwood trees from their respective holdings. The KPT Act, 1986 also permits cutting and removal of trees of certain categories. Therefore, it is contended that Exhibits P9 and P10 are issued without proper application of mind and the reasons stated therein are also not legally correct and no opportunity of hearing was provided to the petitioners before the orders are passed by respondents 2 and 3. Moreover, according to the petitioners, Exhibit P5 cannot be pressed into service for the reason that the land is not a private forest and that the notification itself was rescinded by this Court and also no verification has been conducted by the respondents to see whether the trees are liable to be cut or not. It is in these background facts, the writ petition is filed seeking the following reliefs:
(i) call for the records leading to Exhibits P9 and P10 and other similar orders issued to other petitioners
(ii) issue a writ of certiorari quashing Exhibit P9 and P10 orders issued by respondents 2 and 3
(iii) issue a writ of mandamus or any appropriate writ, order or direction, directing the second respondent to take up Exhibits P8 series applications submitted by petitioners and consider the same and pass orders keeping in mind Exhibit P4 Judgment as well as the fact that Exhibit P5 Notification has no application to the petitioners' property and to issue necessary cutting permits and passes for cutting and removal of the trees that are applied for.
(iv). Declare that the petitioners are entitled to cut and remove those trees specified in Exhibit P8 series applications from the property of the petitioners untrammelled by Exhibit P5 Notification and as provided under Section 6 of the Kerala Promotion of tree growth in non-forest Areas Act, 2005.
(v) issue such other order or direction as that are necessary for the effective enjoyment of the properties covered by Exhibits P1, P2 & P3 without the interference of the respondents or their subordinates
(vi) issue such other writ, order or directions including interim orders as that are necessary in the facts and circumstances of the case
(vil) allow this Writ Petition with Costs
15. In W.P.(C) No.2543 of 2021, a statement is filed by the Divisional Forest Officer – the 2nd respondent, refuting the contentions advanced by the petitioners and justifying his action in not granting permission for cutting and removing the teak trees. It is further stated that in Exhibit P4 notification dated 6th March, 1993 it is directed that no tree standing in the area specified in the Schedule shall be cut, uprooted, burned or otherwise destroyed except on the ground that; (a) the tree constituted a danger to life or property; or (b) the tree is dead, diseased or wind fallen, in the Schedule village Vandazhi (now Mangalam Dam), forest division Nenmara, Alathur Range, locality Corporation Malavaram, having Survey Number 561/3, and extent of 49.37 hectares.
16. The contention advanced by the 2nd respondent is that the said notification is issued under section 5 of the KPT Act, 1986 in respect of the properties of the petitioners and therefore, the petitioners are not entitled to claim relaxation stating that the same is not applicable to them. It is further pointed out that the claim raised by the petitioners that the area was not private forest and section 5 notification issued under the KPT Act, 1986 is not applicable to the land involved in O.A No.412/1981, is without merit.
17. Accordingly, it is contended that the Tribunal found that the areas claimed in O.A.No.412/1981 are notified vested forests and exemption was granted under section 3(3) of the Act, 1971. According to the 2nd respondent, petitioners deliberately suppressed the existence of section 5 notification under the KPT Act, 1986 and submitted a vague, seemingly deceptive permission letter, to mislead the 3rd respondent, who is not the authorised officer to consider their application. It is further pointed out that when the application was denied without approaching the competent officer, W.P.© No.14292/2020 was filed with a distorted interpretation of the direction of a Division Bench of this Court in CMP No.2914/2013 in MFA No.61/1986, produced as Exhibit P5. Anyhow, later the aforesaid writ petition was dismissed as withdrawn by an order dated 6.8.2020, without prejudice to the rights of the petitioners to avail alternative remedies.
18. The sum and substance of the contention advanced is that the 2nd respondent, who is the authorised officer to consider an application for permission to cut and remove trees from the notified areas under section 5 of the KPT Act, 1986, has received Exhibit P9 application under section 6 of the KPT Act, 1986 and on receipt of the same, a detailed field inspection was conducted and thereafter only Exhibit P11 order was passed permitting the 1st petitioner to cut and remove certain teak trees, that are dangerous to the property, whereas the application of the 2nd petitioner was declined.
19. It is also submitted that the predecessors in title of the property filed O.A No.412/1981 before the Forest Tribunal, Palakkad claiming exemption of 150 acres of land from vesting; as per the order dated 20.4.1985, the Forest Tribunal, Palakkad allowed the application in favour of the applicants under section 3(3) of the Act, 1971 including the 43 acres maintained for ancillary purpose. The order of the Tribunal was affirmed partly as per Exhibit P3 judgement in MFA No. 61 of 1986 dated 18th March, 1992 and held that the applicants were entitled to hold 107 acres within the ceiling limit and are entitled for exemption under section 3(3) of the Act, 1971. It was also held that 15 acres of land is a reasonable extent of land liable to be exempted from the provisions of the Act, 1971 for ancillary purposes. Thus, total 122 acres are declared as exempted as per section 3(3) of the Act, 1971 and 28 acres are declared as vested in the State. It is an admitted fact that the said judgement has become final.
20. It is further submitted that the exempted portion of the private forest of Nellikkaidam Malavaram from the purview of section 3(3) of the Act, 1971, having an extent of 49.37 hectares in Sy.No.561/3 of Vandazhi (Mangalam Dam) village in the locality known as Corporation Malavaram, is a watershed of Mangalam Dam. According to the 2nd respondent, the area is steep and susceptible to soil erosion & landslides and due to the specific topographical features prevailing in the area and due to climatic and environmental aspects, the forest vegetation existing in the area needs to be preserved. Therefore, it is submitted that the above area was notified as per section 5 of the KPT Act, 1986, evident from Exhibit P4 and the area was restored to the applicants on 19.4.1993. The predecessors in title of the petitioners challenged Exhibit P4 notification with a prayer to rescind the notification of the land in question in CMP No.2914/1993 in MFA No.61/1986 for rubber cultivation. As evident from paragraphs 3, 4 and 5 of Exhibit P5, a Division Bench of this Court directed the petitioners to file a scheme for planting rubber trees in the restored property of 122 acres, indicating the time limit within which the area can be planted.
21. Subsequently, the petitioners filed CMP No.3091/1993 with a scheme for rubber cultivation and it was suggested that at least 2 months viz., October and November, 1993 for removing trees, two months for contour terracing viz., December 1993 and January, 1994, for construction of kayyalas and check dams another two months viz., February 1994 and March, 1994 and for planting rubber before the heavy monsoon viz., during the 3rd weeks of May, 1994. In paragraph 6 of Exhibit P5 order, it is also noted that in the affidavit filed by the applicants, they have undertaken to plant the entire area with rubber in May – June, 1994.
22. Anyhow, it is stated in paragraph 3, as per the report of the Consultant engaged by the petitioners, various trees are in mature stage and there is serious weed infestation and a good number of trees are diseased or dead and it was accordingly that a direction was issued to the Divisional Forest Officer, Nenmara, to issue necessary permission to cut and remove all the trees in the property and to issue passes for removal of the felled trees. It is further submitted that as per the order of the Division Bench of this Court in CMP No.3091/93, an agreement was executed for the purpose of planting of 107 acres out of 300 acres in R.S.No.561/3 of Vandazhi Amsam on 14.10.1994.
23. It is also stated that the directions issued by the Division Bench were complied with and other directions contained in Exhibit P5 order were also complied with by both parties. It is also submitted that it was considering the merits of the appeal and taking into account the entire documents produced by the petitioners as well as the documents available with the office, Exhibit P11 impugned order dated 18.1.2021 was passed. Therefore, it is submitted that the petitioners are attempting to take a convenient stand to avail the benefits of KPT Act, 1986 & Act, 2005 as well as the directions issued by a Division Bench of this Court in Exhibit P5 order to relax section 5 notification under the KPT Act, 1986, though the exemption was for a limited purpose for a limited period.
24. It is the further contention of the 2nd respondent that the permission granted by a Division Bench of this Court in Exhibit P5 order was for a limited period upto June 1994 and it has no operation thereafter. It is also submitted that the claim of the petitioners that by Exhibit P5 order of the Division Bench, Exhibit P4 notification is permanently rescinded, is totally unsustainable. Therefore, the 2nd respondent seeks dismissal of the said writ petition.
25. Anyhow, in the statement filed by the Divisional Forest Officer in W.P.© No.15384 of 2021, typical contentions are raised. However, it is submitted that consequent on the promulgation of Ecologically Fragile Lands Act, 2000, an extent of 4.0480 hectares of land out of the restored area in O.A No.412 of 1981 was notified as ecologically fragile lands as per a notification dated 21.4.2001. Subsequently, an extent of 3.7480 hectares of land was exempted from the ecologically fragile lands as per a notification dated 22.7.2006 and the same was restored to the party on 9.5.2007 as per a direction of the Principal Chief Conservator of Forest dated 22.7.2006, based on the judgement in W.P.© No.6064/2004. Thereafter, one K.M.Sidhique submitted an application on 22.2.2008 for cutting and removal of 74 teak trees, chadachi, irul, ventheak etc., and permission was issued by the Range Officer. But on noticing violation of section 5 notification applicable to the area restored in O.A.No.412 /1981, as per an order dated 29.3.2008, it was ordered by the Divisional Forest Officer, Nenmara to cancel the cutting permit and take legal action in respect of the trees cut from the area. Later, Sri.Siddique approached this Court by filing W.P.© No.11711/2008, challenging the order of the Divisional Forest Officer, Nenmara. By an interim order dated 22.8.2008 in the said writ petition, this Court directed the Divisional Forest Officer to grant permission to take appropriate action for the removal of trees already cut by imposing appropriate conditions. It is further submitted that disciplinary action was also initiated against the then Forest Range Officer for granting cutting permission in the above land.
26. Therefore, the sum and substance of the contention is that in all respects section 5 under the KPT Act, 1986 is in force in respect of the property in possession of the petitioners and therefore, the prayers sought for by the petitioners in the writ petition have no merits. Therefore, it is contended that the prayers sought for by the petitioners for a declaration that the petitioners are entitled to cut and remove the trees standing in their property except sandalwood trees in view of the provisions contained under section 6(1) of the Act, 2005, is not sustainable.
27. I have heard, learned counsel for the petitioners Sri.V.B.Harinarayan & Sri.M.C.John, learned Special Government Pleader for Forests Sri.T.P.Sajan and perused the pleadings and material on record.
28. The first question to be considered is whether any interference is required to Exhibit P4 notification issued by the Secretary to Government, Forest & Wildlife Department, Thiruvananthapuram, dated 6th March, 1993 for and on behalf of the State; whereby in exercise of the powers conferred under sub-section (1) of section 5 of the KPT Act, 1986, directed that no tree standing in the area specified in the schedule thereto shall be cut, uprooted, burnt or otherwise destroyed except on two grounds i.e., (a) the tree constitutes a danger to life or property; or (b) the tree is dead, diseased or wind fallen.
29. Admittedly, the property belonging to the petitioners is situated in Sy.No.561/3 of Nenmara Forest Division, Alathur range and Vandazhi village, which is included in the schedule as per the notification. Section 5 of the KPT Act, 1986 deals with prohibition of cutting of trees in notified areas. Sub-section (1) thereto specifies that notwithstanding anything contained in any law for the time being in force or in any judgement, 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 tree growth in private forest or in the cardamom hill 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 grounds specified above.
30. The proviso thereto makes it clear that the provisions of the sub-section shall not be deemed to prevent the pruning of any tree as required by ordinary agricultural or horticultural practices. Sub-section (2) of section 5 creates a clear prohibition that no person shall, without previous permission in writing of the authorised officer cut, uproot, burn or otherwise destroy or cause to be cut, uprooted, burnt or otherwise destroy any tree in any area specified in the notification under sub-section (1) otherwise than on any of the grounds specified therein. Explanation (1) there to make it express that for the purpose of section 5, the term “tree” shall include any species of tree. Explanation (2) defines that for the purpose of sub-section (1) of section 5, the expression, “private forest” means, any land, which immediately before 10th day of May, 1971 was a private forest as defined in the Kerala Private Forests (Vesting and Assignment) Act, 1971.
31. Admittedly, the property in question was included as a private forest as per the Act, 1971, which was challenged by the predecessors-in-title of the property of the petitioners before the Authorised Officer by filing O.A.No.42 of 1981, which was allowed; and challenging the said order, the State Government preferred MFA No.61 of 1986 before this Court, which was disposed of as per Exhibit P3 judgement dated 18th March, 1992 upholding the order of the tribunal that the predecessors-in-title of the property were entitled to hold 107 acres of land within the ceiling limit of Kerala Land Reforms Act. However, interfered with the order of the Tribunal with respect to the land required for ancillary purposes and held that instead of 43 acres of exemption granted, 15 acres of land alone was required to be exempted from the provisions of the Act, 1971.
32. Anyhow, later an application - CMP No.2914 of 1993 was filed by the predecessors-in-title of the property in MFA No.61 of 1986 filed by the State seeking permission for cutting and removal of trees standing thereon to plant with rubber trees; after considering the rival submissions, it was observed and held as follows:
“2. The petitioners got actual possession only in April, 1993 due to various formalities to be complied with. However the respondents have issued a notification under Section 5 of the Preservation of Trees Act, 1986 prohibiting cutting of trees in the area restored to the petitioners. The prayer in this C.M.P. is to direct the respondents to rescind the notification.
3. When this petition came up before us, we directed the learned counsel for the petitioners to file a scheme for planting rubber in the restored property. He was also directed to indicate the time limit within which the area can be planted.
4. Subsequently the petitioners have filed C.M.P.No.3091/93 along with a scheme for rubber plantation prepared by Sri.P.K. Zachariah, Plantation Consultant, Tropical Agro-Managerent Consultants, G.C.D.A. Complex,. Marine Drive, Kochi-3, who was previously working as Research Officer in Agronomy, Rubber Research Institute of India and as Head of Indian Cardamom Research Institute till 1986. It is stated in the scheme that rubber does not grow well under shade conditions and hence all trees are to be removed before planting with rubber. It is also stated that in rocky patches and places that are not suitable for cultivation of rubber, the present tree growth can be maintained. As the land is not properly managed till now, there are some gullies. All the present gullies should be plugged to minimise soil erosion. Contour bunds should be made at suitable intervals and small check-cams should be provided to conserve soil moisture. Stone pitched walls (kayyalas) have to be made wherever necessary. Check-dams are to be made in suitable places to conserve water.
5. It is suggested that at least two months, viz. October and November, 1993 are required for removing the standing trees. Contour terracing will take a minimum of two months, viz. December and January, 1994. Construction of stone pitched walls (Kayyalas), Check-dams etc. will take another two months viz. February and March, 1994. Planting of rubber will have to be done before the heavy monsoon starts viz, during the 3rd week of May. The Consultant has also suggested to establish cover crop as early as possible. Mucuna is a good cover crop which is shade tolerant and is not eaten by cattle.
6. In the affidavit filed by the petitioners they have undertaken to plant the entire tree with rubber in May-June. 1994. They have also undertaken to plant and nurture, teak trees all along the boundaries and places which are unuitable for rubber plantation. This undertaking is recorded.
7. From the report of the Consultant as well as the affidavit filed by the petitioners, it is seen that most of the forest trees are in mature stage and there is serious weed infestation. A good number of trees are diseased or dead. Most of the trees are valueless also. It is also clear that the property is about 6 Kms. away from the Mangalam dam.
8. Taking into consideration these aspects, we direct the concerned D.F.O. (D.F.0., Nenmara) to issue necessary permission to cut and remove all the trees in the property and to issue passes for removal of the cut trees. Granting of permission and issue of passes may be expedited so that the petitioners may implement the scheme as proposed. The petitioners should comply with their undertaking and plant the land with rubber by May-June, 1994. The notification challenged in the petition is rescinded to the above extent. Petitioners will serve a copy of the scheme before the D.F.O. for information.”
33. The contention advanced by the petitioners is that consequent to the order passed by the Division Bench of this Court in CMP No.2914 of 1993 in MFA No.61 of 1986, Exhibit P4 notification issued by the State Government under section 5 of the KPT Act, 1986 was rescinded absolutely, and therefore it has no force of law. However, in my considered opinion, the order in CMP No.2914 of 1993 happened to be passed by the Division Bench consequent to a scheme submitted by the predecessors-in-title of the property in CMP No.3091 of 1993 for planting the property with rubber trees. Therefore, I am of the view that the directions were issued by the Division Bench to cut and remove all the trees in the property and to issue passes for the removal of the trees to facilitate planting of rubber trees then.
34. It is also quite clear and evident that the notification Exhibit P4 challenged in the petition is rescinded only to the extent of permission granted for cutting and removing trees for planting rubber trees. Therefore, the contention advanced by learned counsel for petitioners that the entire notification was rescinded cannot be sustained under law.
35. This is more so, because from the report of the Consultant engaged by the petitioners, the learned Division Bench found that most of the forest trees are matured and there was serious weed infestation; a good number of trees are diseased or dead; and most of the trees are valueless also. But it is relevant and important to note that the learned Division Bench has recorded the submission made by the predecessors-in-title of the property in the affidavit that they will plant and nurture teak trees all along the boundaries, and places which are unsuitable for rubber plantation, and in fact the scheme was approved after recording the said undertaking.
36. In that view of the matter, I am of the clear opinion that the notification to the extent it was rescinded at that point of time by the Division Bench as specified above is still in force; and therefore, the said notification issued under section 5 of the KPT Act, 1986 would still have force in respect of the trees standing in the properties in question other than the rubber trees planted in the property.
37. That apart, the State Government has enacted the Kerala Promotion of Tree Growth in Non Forest Areas Act, 2005, to promote the cultivation of trees in non-forest areas of the State in order to increase green cover, preserve biodiversity and arrest soil erosion and to increase availability of timber and bamboo for industry, which is an Act extending to the entire State of Kerala. Section 6(1) of Act, 2005 deals with right of the owners to cut and remove trees in non-notified areas in non-forest land; sub-section(1) thereto states that not-withstanding anything contained in any other law for the time being in force and subject to other provisions of the Act, every owner of non-forest land shall have the right to cut and transport any tree, other than sandalwood tree, standing on his land. But the proviso thereto makes it clear that the provisions of the said sub-section shall not apply to trees, if any, reserved by the Government, at the time of assignment of such land or trees standing on any land notified under section 5 of the KPT Act, 1986 or areas notified by the Custodian under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003. Sub-section 3 of section 6 of the Act, 2005 further specifies that the Government may, with a view to preserving tree growth in the interest of protecting the ecology or in public interest by notification in the Gazette direct that the tree standing in any area of non-forest land specified in the notification shall not be cut, uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes a danger to life or property or is wind fallen. However, there are certain exceptions to the said provision as per the provisos thereto. The 4th proviso makes it clear that such permission mentioned in second and third provisos shall not be refused by the Authorised Officer, if the tree constitutes danger to life or property or is wind fallen.
38. Therefore, it can be seen that the provisions of the KPT Act, 1986 and the Act, 2005 are closely intertwined so as to have an effective implementation of the provisions of both the laws. But, as mandated above, a notification is required under the Act, 2005 in order to have an effect on the provisions of the KPT Act, 1986.
39. On a perusal of the Schedule in the Act, 2005 introduced as per section 6(3) of the said Act, it is clear that the trees that can be cut and removed without permission are clearly prescribed, and that would not include teak trees. But at the same time, trees such as coconut, rubber, cashew, tamarind, mango, jackfruit, arecanut and other trees can be cut and removed without permission.
40. Anyhow, the State Government has issued a notification under section 6(3) of Act, 2005 bearing SRO No.713/2006, whereby the State, considering public interest, directed that no tree standing in any area of non-forest land specified in the 4th column of the schedule of the said notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes danger to life or property or is wind fallen.
41. The said notification was superseded by SRO No.797 of 2006 dated 14th November, 2006, by which it was directed that no tree standing in any of the non-forest land specified in column 4 of the schedule to the notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes danger to life or property or is wind fallen or is permitted by the provisos of the said sub-section. Serial No.21 in the schedule deals with the properties situated in Palakkad District, Alathur Taluk and Mangalam Dam Village. Indisputably, the properties in question are covered by the said notification.
42. Now, the sole question to be considered is whether any interference is required to Exhibit P11 impugned order passed by the Divisional Forest Officer, Palakkad in W.P.© No.2543 of 2021; whereby out of the 47 teak trees for which permission was sought for, cutting and removal of some of the teak trees belonging to the first petitioner in the said writ petition were permitted since they are standing in a dangerous condition. Therefore, it is clear that it was taking into account the law and factual and ground realities that the Divisional Forest Officer has passed the impugned order. It is also significant to note that no restriction is caused to cut and remove the rubber trees.
43. The Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005, was enacted by the Government to stop indiscriminate felling and destruction of trees in the State of Kerala which resulted in considerable soil erosion and devastation, and loss of timber wealth of the State. It is interesting to note that the petitioners have sought to quash Exhibit P4 notification but I am of the view that the notification is only a consequential incident to section 5 of the KPT Act, 1986; and therefore, without a challenge to the provision of law under which the notification is issued, the challenge is baseless and unfounded.
44. Considering the facts and circumstances and the law, I am of the undoubted opinion that the petitioners in W.P.© No.2543 of 2021 have not established a case of arbitrariness or illegality or any other legal infirmities, justifying interference of this Court in a proceeding under Article 226 of the Constitution of India.
45. As far as W.P.© No.15384 of 2021 is concerned Exhibit P8 series of applications submitted by the petitioners seeking permission to cut and remove the teak trees are not considered properly by the authorised officer, especially taking into account the provisions of law discussed above which permits cutting of trees under compelling circumstances. I am also of the view, the finding of the officer that since the property was notified under Section 5 of the Kpt Act 1986, no permission at all can be granted for cutting and removal of trees is not a correct approach to the law. Therefore Exhibit P9 series of orders impugned in the said writ petition are quashed. There is no interference required to Exhibit P10 series of orders since the Divisional Forest Officer was right in holding that he has no power to entertain appeals filed by the petitioners. In that view of the matter, the said writ petition is partly allowed; and accordingly directs the Authorised Officer to reconsider Exhibit P8 series of applications submitted by the petitioners, at the earliest, at any rate, within six weeks from the date of receipt of a copy of this judgement in accordance with the law, after providing an opportunity of hearing to the petitioners.
To sum up, W.P.© No.2543 of 2021 is dismissed and W.P.© No.15384 of 2021 is allowed to the above extent.
