Point of Law: If a smallholder requires to cut a tree from a notified area, they need to obtain permission from Authorized Officer, and if he wants to transport it, he must obtain a transportation permit as stipulated in second proviso to Section 6(6) of Act of 2005.

ORDER :

1. Petitioner challenges the criminal proceedings initiated by the Forest Range Officer, Kumily, as OR No. 29/2013, alleging offences punishable under the Kerala (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995 (hereinafter referred to as ‘Rules 1995’).

2. Petitioner claims to be in possession of 0.2934 hectares of land in Survey No. 222 of Kumily Village in Peermade Taluk, Idukki District, which is alleged to have been obtained by him as per a settlement deed No. 3700[1]/2011 of Sub Registry Office, Peermade. Petitioner claims to have obtained permission from the Tahsildar, Peermade, on 21.05.2013 to cut and remove two Rosewood trees from the property situated in Survey No. 222 of Kumily Village in Peermade Taluk. Based upon the permission so granted, petitioner cut the Rosewood trees standing on his land, and while the same was being transported, the 2nd respondent intercepted them and initiated criminal proceedings on 11.07.2013.

3. Petitioner contends that no offence as alleged under the Rules 1995 arises, since the trees standing on his absolute property, allegedly assigned to his predecessors, had never been reserved. It was also contended that even otherwise, petitioner had the authority and permission to cut and remove the Rosewood trees standing on his property, as is evident from Annexure-II. It is the further case of the petitioner that the aforementioned Rules do not apply to the petitioner and that the prosecution has been initiated, ignoring the dictum laid down by this Court in Augustine Mathew and Another vs. State of Kerala, 2009 (3) KHC 179.

4. A statement is filed by the 2nd respondent, wherein it is pleaded that the property formed part of a tea estate called ‘Amaravathy Estate’ which was held by a company and that it is assumed that the company obtained the said estate by virtue of a Kuthakapattam grant. It was also stated that out of the total extent, the company had sold a large portion to one Sri. Subrahmanya Ayyar. The specific pleading in the statement was that “the land might have been obtained by the company for promoting tea cultivation by way of grant, (kuthakapattam) by the erstwhile Maharaja of Travancore as per the rules passed on 25.02.1923.” It was also stated that the land that falls under the kuthakapattam grant attracts the provisions of the Kerala Grants and Leases (Modification of Rights) Act, 1980 and the ownership of tree vests with the Government and not with the petitioner. The respondent pleaded that since the Rosewood trees cut by the petitioner belonged to the Government, even though the land was assigned to him, petitioner had violated the forest laws and rules and as he is not the real owner of the trees, he had no right to remove the Rosewood trees standing on the land. Ann. IV is the criminal proceeding initiated against the petitioner and challenged in this petition.

5. I have heard Sri. G. Hariharan, learned Counsel for the petitioner as well as Sri. T. Jayan, learned Government Pleader representing the Forest Department and have considered the rival contentions.

6. Though Annexure-IV does not refer to any specific provision of law as having been violated by the petitioner, except for a vague reference, to violation of Rules 1995, I proceed to consider the case assuming that the petitioner had violated Rules 3 and 4 of the aforementioned Rules 1995. It is trite law that, in order to attract the penal provisions of the Rules, if a tree is cut and removed from a land which was the subject of a grant earlier, the trees ought to have been expressly reserved in the deed of grant or assignment. As held in Augustine Mathew and Another vs. State of Kerala, 2009 (3) KHC 179, the trees ought to have been reserved by the grant for the application of the aforesaid Rules.

7. In the instant case, there is nothing on record to show that the property is situated on land covered by any grant or that any tree was reserved at the time of the g