Point of Law: Non-forest land assigned under “Michabhoomi Patta” will not come under the purview of Section 82 of the Kerala Forest Act, 1961

JUDGMENT :

Petitioner, who is owner of 62.10 Ares of property in Re-survey Nos.245/8, 245/7, 245/21 (old Survey No.567) of Pulankode Village, Thalappilly Taluk, has filed this writ petition seeking to quash Exts.P12 to P14 and to direct the 2nd and 3rd respondents to give permission for cutting and removing the trees referred in Ext.P9 order which is planted and situated in the petitioner's property, without any further delay and within a stipulated time as fixed by this Court. The petitioner has also sought certain other incidental reliefs.

2. The petitioner states that the properties were originally assigned to one Anthinkutty, Aysha and Kurumba as per a Patta issued under Rule 31(9) of the Kerala Land Reforms (Ceiling) Rules, 1970. The assignees paid the purchase price. In view of Section 52(1) of the Kerala Land Reforms Act, 1963, all timber trees planted by the cultivating tenant or predecessor-in-interest or spontaneous sprouting and growing in the holding after the commencement of the tenancy shall belong to the cultivating tenants. The trees now standing in the petitioner's property are planted and maintained by the petitioner himself.

3. The petitioner wanted to cut and remove 20 teak trees and 100 teak logs which are planted and cultivated by the petitioner and his predecessors after the issuance of purchase certificate. A formal permission is necessary from the authorised officer to cut and remove the trees under the provisions of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005. Hence, the petitioner submitted an application to the 4th respondent. As per Ext.P9, the 4th respondent sent the application to superior officers for clarification.

4. The petitioner states that the Forest officials were deliberately protracting the consideration of his application. The petitioner filed W.P.(C) No.11829 of 2021 before this Court seeking to direct the 2nd and 3rd respondents to grant permission to the petitioner to cut and remove the trees referred in Ext.P9 order. This Court by Ext.P11 judgment directed the 5th respondent to submit a report within three weeks and the 3rd respondent was directed to pass orders in the light of the provisions contained in the Kerala Land Reforms Act. The 5th respondent-Tahsildar thereupon sent Ext.P13 communication to the Range Forest Officer and the Additional Chief Secretary gave Ext.P14 clarification. The 3rd respondent issued Ext.P12 letter to the petitioner informing that the trees sought to be cut and removed are vested in the Government and hence the petitioner cannot be granted permission.

5. The counsel for the petitioner argued that as per Section 52(1) of the Kerala Land Reforms Act, 1963, all timber trees planted by the cultivating tenant or his predecessor-in-interest or spontaneously sprouting and growing in the holding after the commencement of the tenancy in favour of the cultivating tenant or his predecessor-in-interest, shall belong to the cultivating tenant. Therefore, there is no doubt about the entitlement of the petitioner to cut and remove the trees.

6. The Additional Tahsildar has also stated that the tree planted by the holder belongs to him and he has every right to cut and remove the same. Section 52(2) has no application as far as the tree standing in the petitioner's property is concerned. These trees were not in existence at the commencement of the tenancy or at the time of issuing purchase certificate. Exts.P 12 to P14 have been issued in an arbitrary manner and ignoring the provisions contained in the Kerala Land Reforms Act, 1963 and the Land Reforms (Ceiling) Rules, 1970. Exts.P12 to P14 are therefore liable to be quashed, contended the learned counsel for the petitioner.

7. The Special Government Pleader (Forests) contested the writ petition on behalf of the 3rd respondent. The land owned by the petitioner originally belonged to the Government as per Section 86 or Section 87 of the Kerala Land Reforms Act, 1963. The Act, 1963 does not speak anything