IMPORTANT POINT
Exemption from vesting under the Kerala Private Forests (Vesting and Assignment) Act does not change the classification of land as a private forest, and the Kerala Preservation of Trees Act has overriding authority to prohibit non-forest activities in notified areas.

JUDGMENT :

S. MANU, J.

1. Judgment dated 12.4.2019 in W.P.(C)No. 22062/2007 of the learned Single Judge is under challenge in this appeal. By the impugned judgment the learned Single Judge dismissed the writ petition rejecting the contentions of the petitioners.

2. Case of the appellants, in short, is as follows:

14.67 acres of property comprised in Sy.No. 2/2 of Kadampazhipuram-1 Village of Ottappalam Taluk of Palakkad District was purchased by the appellants. By order dated 27.5.1978, the Forest Tribunal, Palakkad allowed the claim for exemption made by the sellers of the property under Section 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971. According to the appellants, the properties were cultivated with tapioca and cashew as on the appointed day which was 10.5.1971 and therefore the land was not a private forest. The order of the Forest Tribunal was not challenged by anyone. However, the properties were restored only on 04.12.2004. While restoring possession of the property by certificate dated 4.12.2004 the Divisional Forest Officer further certified as follows:

“Also certified that the above area restoring possession is notified under Section 5 of KPT Act, 1986. In view of the above notification and in the light of ruling of Hon.Supreme Court in WA 202/95 cutting of trees and using the area for non-forestry purposes are not allowed.”

The writ petitioners purchased the property from the original holders by sale deeds executed in 2006. The petitioners wanted to conduct quarrying operations in the property. By notice dated 16.2.2007, produced as Ext.P7, the Forest Range Officer directed the writ petitioners not to conduct any quarrying operations. Applications for issuing No Objection Certificate for conducting quarrying operations were submitted to the Divisional Forest Officer thereafter. However, those requests were rejected by the DFO on 20.3.2007. In the writ petition, challenge was raised against Ext.P7 notice dated 16.2.2007 issued by the Forest Range Officer and the orders issued by the DFO on 20.3.2007 to the 1st appellant and the predecessor in interest of the appellants 2 to 7. Later, the writ petition was amended to incorporate a challenge against condition incorporated in Ext.P6 certificate and Ext.P12 notification dated 8.10.1998 imposing the provisions of the Kerala Preservation of Trees Act over the properties in issue.

3. The Government resisted the writ petition. A statement was filed by the 3rd respondent DFO. It was alleged in the statement that the property in question is forest land having vested forest on its boundaries. The intention of the writ petitioners was to conduct quarrying and change the character of the land from forest land. It was contended by the Government that no non-forest activities could be permitted in the area. Accordingly, the official respondents prayed for dismissing the writ petition.

4. The writ petition was finally heard by the learned Single Judge on 2.4.2019 and by judgment dated 12.4.2019 the same was dismissed.

5. Sri.Babu Joseph Kuruvathazha, the learned counsel for the appellant argued before us that the Forest Tribunal, Palakkad, as early as on 27.5.1978, categorically found that the properties purchased by his clients were not private forests. He contended that Ext.P4 order of the Forest Tribunal is a declaration to the effect that the property was not a private forest and by virtue of Section 3(2) of the Kerala Private Forests (Vesting and Assignment) Act, 1971, provisions of Kerala Preservation of Trees Act, 1986 would have no application to the property. He further contended that the condition incorporated in Ext.P6 certificate regarding application of the Preservation of Trees Act is therefore not sustainable. He also argued that the rejection of request for issuing NOC for conducting quarrying operation was therefore improper and illegal. He placed reliance on various judgments of the Apex Court as well as this Court in support of his contentions.

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