IMPORTANT POINT
The court established that government notifications under the Trees Act can override previous exemptions, requiring compliance for tree cutting in designated areas.

JUDGMENT :

HARISANKAR V. MENON, J.

The petitioners are father and son respectively. This writ petition is filed, challenging Ext.P8 notification issued under Section 5 of the Kerala Preservation of Trees Act, 1986 (hereinafter referred to as the ‘Trees Act’, for short). The petitioners have also sought for a direction to the respondents not to obstruct them from cutting and removing the trees from the agricultural lands covered by Exts.P1 to P3 title deeds.

2. The petitioners have been holding some properties on the basis of Ext.P1 in the name of the 1st petitioner and Ext.P3 in the name of the 2nd petitioner. These properties were stated to be principally planted with rubber trees as also other trees. A copy of the registration certificate obtained under the provisions of the Rubber Act, 1947, from the Rubber Board is also produced as Ext.P5, to prove that the petitioners were engaged principally in rubber cultivation.

3. Proceedings were taken against the properties of the petitioners under the provisions of the Kerala Private Forest (Vesting and Assignment) Act, 1971 (hereinafter referred to as the ‘Assignment Act’, for short) by the Forest Department. This was taken up by the petitioners before the Forest Tribunal, Palakkad, culminating in the issue of Ext.P6 order dated 04.08.1979. In the said order, the Forest Tribunal found that the property concerned was cultivated with tapioca, modan, etc., and also that the petitioners had no land in excess of the ceiling limit.

4. Ultimately, after referring to a local inspection conducted on the properties, the Tribunal found that the petitioners had proved that the lands in question were put to cultivation of agricultural crops and therefore entitled to exemption under the Act.

5. Against the said order, the State filed MFA No.468 of 1980 before this Court. By Ext.P7 judgment dated 24.01.1986, this Court found that the observations by the Tribunal in Ext.P6 order can only be taken for declaring the eligibility of the petitioners for exemption with respect to the provisions of Section 3 (3) of the Assignment Act. Finding thus, the appeal filed by the State is dismissed by the Division Bench of this Court.

6. On the basis of Ext.P7 judgment, the petitioners have been holding the properties.

7. The petitioners pointed out that, when they wanted to cut and remove the aged rubber trees and other trees standing on their properties, there was interference from the 3rd respondent. On enquiry, the petitioners were informed that the obstruction was effected by the Forest Department on the basis of Ext.P8 notification issued under the provisions of Section 5(1) of the Trees Act.

8. In such circumstances, the petitioners preferred this writ petition under Article 226 of the Constitution of India, challenging Ext.P8 notification and also seeking the afore reliefs. A detailed counter affidavit has been filed in the matter by the 1st respondent. In the counter affidavit, the Forest Department points out that, as against the properties held by the petitioners, the limitations prescribed by Ext.P8 notification are attracted, and therefore, there cannot be any cutting and removing of trees without obtaining formal permission in the matter as prescribed by the statute.

9. I have heard Sri.P.C.Thomas and Sri.Rojo J. Thuruthipara, the learned counsel appearing for the petitioners, and Sri.T.P. Sajan, learned Special Government Pleader (Forests), appearing for the respondents.

10. Sri.P.C.Thomas, the learned counsel for the petitioners, points out that the petitioners are entitled to cut and remove the rubber trees as well as other trees on account of the following reasons;

(i) He points out that, by virtue of the order at Ext.P6 issued by the Forest Tribunal, there is a declaration to the effect that the properties held by the petitioners are not private forests. When that be so, the notification at Ext.P8 does not apply as against the properties of the petitioners.

(ii) Alternatively, it is submitted