Penal consequences under the Act are strictly contingent upon the subject matter being a 'specified tree.' The failure to establish this foundational jurisdictional fact renders the prosecution for the destruction of generic saplings legally insufficient, warranting the quashing of proceedings to prevent the abuse of the process of law.

ORDER :

The petitioner is the accused in O.R No.02/2021 registered by the Social Forestry Range, Attingal, alleging that he has contravened Sections 3, 6 (7), 4 (7)(1), 4 (7)(2) and 4 (7)(3) of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 and as amended by Act 19 of 2007, (hereinafter referred to as ‘Act’) and thereby committed an offence under Section 7 of the Act.

2. The petitioner seeks to quash the Occurrence Report (“O.R”, for short) and all consequential proceedings on the assertion that even if the allegations in the O.R are accepted in their entirety, they do not attract the offence alleged against the petitioner. The petitioner contends that as the respondents have failed to state the details of the specified trees in the O.R or its schedule, which is mandatory under the Act to attract the offence, the O.R is liable to be quashed.

3. The prosecution allegation, in essence, is that, as per the directions of the petitioner, who was the then Secretary of the Varkala Municipality, 440 saplings of fruit bearing trees were planted by the Social Forestry Division, Attingal Range in the property of the Varkala Municipality, but were destroyed on 24.06.2021 in violation of the provisions of the Act.

4. Sri. K. Siju, the learned counsel appearing for the petitioner, contends that Section 6(7) of the Act read with Rule 7 of the Kerala Promotion of Tree Growth in Non-Forest Areas Rules, 2011 ('Rules', in brevity), is applicable only in respect of “specified trees” as defined under Section 2(e) of the Act. Since the occurrence report does not state that any specified tree was cut, removed or disposed of, the offence is not attracted. Therefore, the proceedings may be quashed.

5. On the contrary, Sri. C.S. Hrithwik, the learned Senior Public Prosecutor, opposes the petition. He submits that the allegations in the O.R. are disputed questions of fact, which can only be decided after trial. Hence, this Court may not exercise its inherent powers and quash the proceedings.

6. The specific allegation against the petitioner is that he has contravened Section 6 (7) of the Act by cutting, removing and disposing of the saplings that were planted by the Social Forestry Division in the property of the Varkala Municipality.

7. In order to answer the rival contentions, it is necessary to examine the statutory framework of the enactment.

8. Section 6 of the Act reads as follows:

"6. Right of owners to cut and remove trees in non-notified areas in non-forest land.-- (1) Notwithstanding anything contained in any other law for the time being in force and subject to the other provisions of this Act, every owner of non-forest land in a non-notified area shall have the right to cut and transport any tree, other than sandalwood tree, standing on his land:

Provided that the provision of this sub-section shall not apply to trees, if any, reserved by the Government at the time of assignment of such land or trees standing on any land notified under section 5 of the Kerala Preservation of Trees Act, 1986 (35 of 1986) or the areas notified by the Custodian under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (21 of 2005).

(2) For the purpose of this Act the Government may, by notification in the Gazette, appoint such officers not below the rank of a Forest Range Officer as they think fit to be Authorised Officers (referred to as 'Authorised Officer' in this Act) and may assign to them such local limits as the Government think fit.

(3) The Government may, with a view to preserving tree growth in the interest of protecting the ecology or in public interes