1. Cognizance has been taken by the Judicial First Class Magistrate’s Court-II, Thamarassery, as against the petitioners, for the offences under Sections 2(g), 6(3) and 7 (1) of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 (hereinafter referred to as ‘The 2005 Act’), on the basis of Annexure-5 complaint preferred by the Forest Range Officer, Thamarassery.

2. It is alleged that the petitioners had cut and removed certain mangroves from their 72 cents of property. Occurrence report was registered through Annexure-1 as O.R.No.13 of 2012. Even though the date of occurrence is not specified, it is discernible that the incident had occurred in the year 2012, when O.R. was registered in the year 2012.

3. According to the petitioners, the court below ought not to have taken cognizance of the said offences against the petitioners on the basis of Annexure-5 filed by an Officer, who was incompetent to file such a complaint. Over and above it, it has been argued that no offences are made out under the aforesaid provisions in this case.

4. Admittedly, the property, from which the mangroves were allegedly cut and removed, is having an extent of 72 cents only. Therefore, the petitioners can clearly be styled as a ‘small holder’ within the meaning of Section 2(db) of the 2005 Act. The owners of a non-forest land not exceeding one hectare should be qualified as ‘small holders’.

5. As per the First Proviso to Section 6(3) of the 2005 Act, small holders in the area notified under Section 6(3) are free to cut and remove any tree except the specified trees. “Specified trees” are defined in Section 2(e) of the 2005 Act as:

“2(e) “specified trees” means “Sandal wood (Santalum album)”, Teak (Tectonagrandis), Rosewood (Dalbergia latifolia), Irul (Xylia xylocarpa), Thempavu (Terminalia tomantosa), Kampakam (Hopea Parviflora), Chadachi (Grewiatiliaefolia), Chandana vempu (Cedrela toona), Vellakil (Dysoxylum malabaricum) or Ebony (Diospyrus sp.)”

Therefore, mangroves are not coming within the definition of “specified trees”.

6. As per Note to Section 6(3), for the purpose of Section 6(3) all the mangrove areas or cardamom or coffee plantations shall be deemed to be notified areas. It is true that it is a notified area. According to the learned Special Government Pleader for Forest, when it is a deemed notified area, it is as good as reserve forest and therefore, permission is required to cut and remove trees. At the same time, through the Special Act, i.e., the 2005 Act, the small holders are permitted to cut and remove any tree from the said property, except the specified trees. It enables a small holder to cut and remove trees other than specified trees.

7. As per the Third Proviso to Section 6(3), owners other than small holders of a notified area may cut and remove any tree other than sandalwood tree with the prior permission in writing of the Authorised Officer only, and such permission shall not be required for the cutting and removal of trees mentioned in the Schedule. 28 trees are mentioned in the schedule appended to the 2005 Act. The said schedule is meant for owners other than small holders. Such owners other than small holders can cut and remove any of the said 28 items of trees from a notified area without permission.

8. At the same time, a wide right has been given to small holders through the First Proviso to Section 6(3) by enabling them to cut and remove any tree except the specified trees. Mangroves were not incorporated as specified tree during 2012. In 2015, a Bill has been brought for incorporating mangrove species also as a specified tree. Matters being so, no offences are made out against the petitioners as alleged.

9. The learned counsel for the petitioners has pointed out another illegality in the matter. As per Section 11 of the 2005 Act, upon a report under clause (a) of sub-section (3) of Section 9, the Magistrate can take cognizance of the offences. As per Section 9(3)(a), the Divisional Forest Officer, t