A.M. Shaffique, J.

1. Petitioner challenges Ext. P8 an order passed by the Divisional Forest Officer, rejecting the petitioner's request for cutting and removing rosewood trees in the land assigned to him by the Government on the ground that as per Condition No. 1 of the patta, the full right of all the trees vests in the Government which are also subsequently found in the property. The facts as disclosed would show that the petitioner's father was assigned an extent of 3 acres 35 cents of land as per Ext. P1 patta. By virtue of partition, it is said that this property was allotted in the name of the petitioner. There were four rose wood trees in the property of which two were in a dangerous situation and the other two were cut and removed to raise funds for repayment of the liabilities of the petitioner. He made a request to the 4th respondent Tahsildar seeking permission to cut and remove the said four rosewood trees. The 4th respondent by Ext. P6 reported about the nature of the trees standing in the property and opined that the said trees had not been reserved. The matter was therefore, placed before the Forest Range Officer, Adimali. Ext. P7 is the report by the Section Forester to the Range Officer. After verification of the same he stated that the four rosewood trees are not reserved and the matter was placed before the Division Forest Officer, who thereafter passed Ext. P8 order.

2. It is the contention of the petitioner that the reasons stated in Ext. P8 is absolutely baseless. There is no reference to any reservation of trees in Ext. P1 as the Schedule would show that there were no teak, black wood, ebony or sandalwood trees in the land at the time of assignment. According to petitioner, condition No. 1 of Ext. P1 pattayam cannot be relied upon to contend that the trees that subsequently came into existence also would be reserved. That apart, even though there is such a provision in the condition, on the enactment of the Kerala Promotion of Tree Growth in Non Forest Areas Act, 2005 (hereinafter referred as the 'KPTG Act'), the conditions may not have any relevance and the provisions of the said Act will have to be followed for the purpose of cutting and removing four rosewood trees from the property.

3. Counter affidavit is filed by the second respondent supporting the stand taken in Ext. P8 order. It is stated that in so far as Ext. P8 is issued on the basis of condition No. 1 of the Pattayam, petitioner cannot claim any better rights.

4. Heard learned counsel for the petitioner and the learned Special Government Pleader.

5. The first question to be considered is whether the petitioner is entitled to return the rosewood trees in the property in terms of Ext. P1 patta. The revenue authorities have in their report opined that none of the trees were reserved in Ext. P1 patta and therefore the matter was referred to the forest authorities. Condition No. 1 in Ext. P1 patta reads as under:

1. The full right over all the trees within the grant and specified in Schedule vests in the Government and the assignee is bound to take care of all such trees standing on the land at the time of assignment or that may come into existence subsequent to it.

6. The Schedule in Ext. P1 patta describes four types of trees viz., teak, black wood, ebony and sandalwood. But it is stated in the particulars as "Nil". Apparently, at the time of grant there were no such trees in the property. The contention of the petitioners is that condition No. 1 in the patta only relates to those trees which were in existence at the time of grant and not in respect of trees that had come into existence subsequent to the date of grant. The learned Special Government Pleader however refers to an unreported judgment of this Court in W.P.C. No. 804 of 2006 of the learned Single Judge of this Court to highlight the fact that a similar clause had been considered by this Court. That was the case in which the petitioner is a subsequent purchaser of the land which