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2009 Supreme(Online)(KER) 31507
HIGH COURT OF KERALA
S. SIRI JAGAN, J
T.UNNIKRISHNAN NAIR – Appellant
Versus
STATE OF KERALA – Respondent
OP/5373/1998
MR.T.C.MOHANDAS, MR.T.M.SUNIL, MR.ANJU GOVIND
Private forests exempted from vesting remain subject to restrictions under the Kerala Preservation of Trees Act, emphasizing the state's authority to regulate tree cutting regardless of prior exemptions.
Headnote:
Forest - Private Forest - Kerala Private Forest (Vesting and Assignment) Act, Kerala Preservation of Trees Act Section 5 - The court upheld the authority of the state to issue a notification under the Kerala Preservation of Trees Act prohibiting the cutting of trees in privately owned forests, even when exempted from vesting under the Kerala Private Forest Act.
Fact of the Case:
The petitioner claimed exemption from vesting private forest under the Kerala Private Forest Act but faced challenges with restoration of land and government notifications restricting tree cutting, prompting legal action to quash the government's notification.
Finding of the Court:
The court found that the government was within its rights to issue notification under the Kerala Preservation of Trees Act to protect tree growth in private forests, asserting that such regulations apply regardless of prior exemptions granted under the Private Forest Act.
Issues: Whether the government can issue notifications under the Kerala Preservation of Trees Act for privately owned forests exempted from vesting under the Kerala Private Forest (Vesting and Assignment) Act.
Ratio Decidendi: The court emphasized that the provisions of the Kerala Preservation of Trees Act, particularly Section 5, have an overriding effect and must be adhered to even if a forest has been exempted from vesting.
Final Decision: The original petition challenging the government's notification was dismissed.
JUDGMENT
When certain private forest belonging to the petitioner was sought to be vested in the Government under the Kerala Private Forest (Vesting and Assignment) Act, the petitioner filed O.A.No.963/74 before the Forest Tribunal, Palakkad claiming exemption from vesting. That O.A. was allowed and the land was exempted from vesting. In spite of the judgment of the Forest Tribunal, the land was not restored to the petitioner. The petitioner approached this Court by filing O.P.No.3665/96 and by Ext.P3 judgment, the respondents were directed to restore the land to the petitioner. Despite the same, the land was not restored to the petitioner. The Government sought extension of time which was also granted. Even after the extended period was over, the land was not restored. While so, the Government issued Ext.P4 notification under the Kerala Preservation of Trees Act 1986 notifying the land under Section 5 of the said Act.
Ext.P4 is under challenge before me.
O.P.No.5373/98 2
2. The contention of the petitioner is that the land having been exempted from vesting under the Kerala Private Forest (Vesting and Assignment) Act, the respondents cannot prohibit the petitioner's from cutting trees therein for the beneficial enjoyment of the property. The petitioner, therefore, seeks quashing of Ext.P4 notification issued by the Government under the said Act.
3. I have heard the learned counsel for the petitioner as also the learned Government Pleader. The learned Government Pleader would submit that subsequently the properties were notified as ecologically fragile land under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act. Later on, it was found that part of the properties is not liable to be so vested and accordingly, the proceedings were initiated for de-notifying the said land. The learned counsel for the petitioner submits that pursuant thereto, an extent of 1 and odd acres of land has been de-notified.
4. I am not called upon to decide the effect of subsequent event on this original petition, in so far as what is under challenge before me is only validity of Ext.P4 notification. The validity or otherwise of the notification would have no effect on O.P.No.5373/98 3 the notification of the land under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act. The question as to whether the notifications can be issued under the Kerala Preservation of Trees Act in respect of private forest exempted from the purview of the Kerala Private Forest (Vesting and Assignment) Act has been the subject matter of decision of a Division Bench of this Court inJoseph V. State of Kerala [ 2005(4) KLT 504 ], in which it has been held by this Court that Section 5 of the Preservation of Trees Act will have overriding effect on any of the provisions of the Kerala Private Forest (Vesting and Assignment) Act and grant of exemption from the vesting of a private forest does not affect the validity of notification under the . The validity of the notification has to be decided with reference to of the , which reads thus:
“prohibition of cutting of tree in notified areas.- (1) Notwithstanding anything contained in any law for the time being in force, or in any judgment, decree or order of any Court, tribunal or other authority, or in any agreement or other arrangement, the Government may, with a view to preserving the tree growth in private forests or in the Cardamom Hills Reserve or in any other areas cultivated with cardamom, O.P.No.5373/98 4 by notification in the Gazettee, direct that no tree standing in any such area specified in the notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that-
(a) the tree constitutes a danger to life or property; or (b) the tree is dead, diseased or windfallen:
Provided that the provisions of this sub-section shall not be deemed to prevent the pruning of any tree as required by ordinary agricultural or horticultural practices.
(2) No person shall, witho
