IMPORTANT POINTS
Section 5 of the Kerala Preservation of Trees Act applies to private forests. The case of the petitioners is that insofar as the lands covered by Ext.P1 order of the Forest Tribunal are lands exempted from private forest in terms of subsection (3) of Section 3 of Act 26 of 1971, Section 5 of the Kerala Preservation of Trees Act does not apply to the same. The fact that the lands were private forest is not disputed by the petitioners. It is clarified by the Division Bench in W.A. No. 1484 of 2010 that despite the exemption from vesting in terms of Sections 3(2) and 3(3), the land which is exempted would continue to retain the character of private forest. If that be so, it cannot be contended that Section 5 of the Kerala Preservation of Trees Act does not apply to the subject land, merely for the reason that the same is exempted under Section 3(3) of Act 26 of 1971.

JUDGMENT :

1. The writ petition is one instituted challenging Ext.P9 order of the custodian under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (the Act), in terms of which he has revised Ext.P2 order passed by his predecessor under Section 19(3)(b) of the Act.

2. The first petitioner is one of the applicants in O.A. No.257 of 1979 on the files of the Forest Tribunal, Palakkad. The second petitioner is one of the applicants in O.A. No.203 of 1979 and the third petitioner is one of the applicants in O.A. No.103 of 1979 on the files of the very same Tribunal. The said original applications were preferred claiming exemption from the provisions of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act 26 of 1971) in respect of a few items of lands, measuring altogether 163.14 Acres. In terms of Ext.P1 common order, the Forest Tribunal allowed the original applications granting exemption to the applicants under Section 3(3) of Act 26 of 1971 in respect of the lands involved in the matters. The State challenged Ext.P1 order in appeal before this Court in M.F.A. No.471 of 1982 and this court affirmed the decision of the Tribunal. Consequently, the lands were restored to the petitioners in the proceedings on 15.07.1994. Later, when the Act was promulgated, 49.7793 hectares out of land involved in the proceedings covered by Ext.P1 order has been notified under the Act. It is alleged by the petitioners that the first petitioner and thirty others, in the circumstances, preferred an application before the custodian under Section 19(3)(b) of the Act for restoring the notified land contending that it is not an ecologically fragile land. The aforesaid application was allowed by the custodian directing to survey and demarcate the subject land and de-notify the same in terms of Ext.P2 order. Pursuant to Ext.P2 order, the land was surveyed, demarcated and de-notified. Thereupon, the petitioners and others have applied for and obtained no objection certificates in respect of the land for the convenient enjoyment of the same. Earlier, while restoring the lands pursuant to Ext.P1 order, the same have been notified under Section 5 of the Kerala Preservation of Trees Act in terms of Ext.P10 order. In the light of Ext.P10 order, it is stated in the no objection certificates that prior permission of the Central Government is required for diversion of the lands for non forestry purposes and for cutting of trees from the lands. The writ petition as instituted, in the circumstances, was one mainly for a declaration that Section 5 of the Kerala Preservation of Trees Act does not apply to the subject lands.

3. Ext.P2 order has been revised by the successor in office of the custodian under the Act pending disposal of the writ petition in terms of Ext.P9 order and the land covered by Ext.P2 order was consequently notified as ecologically fragile land again under the Act. Ext.P8 is the notification issued in this regard by the custodian under the Act. In the light of the said developments, the writ petition was amended by the petitioners incorporating challenge against Ext.P9 order and Ext.P8 notification as well. The prayers in the amended writ petition read thus:

“(i) Issue a declaration that Section 5 of the Preservation of Trees Act, 1986 is not applicable to the properties of the petitioners;

(ii) To issue a Writ of mandamus or any other appropriate writ, order or direction, directing the respondents to permit the petitioners to clear fell the properties covered by Exhibit-P1 and Exhibit-P2 orders;

(iii) To issue such other writ, order or direction which this Hon'ble court may deem fit and proper in the facts and circumstances of this case;

(iv) To issue a writ of certiorari and quash the clause regarding section 5 of the Preservation of Trees Act, 1986 in Exhibit-P3.

(v) To call for the records leading to Exhibit P8 notification and quash the same by the issuance of a writ of certiorari.

(vi) To call for the recor