IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.J.B.KOSHY & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 5TH JANUARY 2009 / 15TH POUSHA 1930 WA.No. 1276 of 2000(D) --------------------------------- AGAINST THE JUDGEMENT IN OP.19122/1997 Dated 16/02/1999 .................... APPELLANTS/RESPONDENTS: ------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, SECRETARIAT, TRIVANDRUM. 2. THE FOREST RANGE OFFICER, AGALI RANGE, AGALI, PALAKKAD DISTRICT. 3. THE DIVISIONAL FOREST OFFICER, MANNARKKAD, PALAKKAD DISTRICT. 4. THE DIVISIONAL FOREST OFFICER, PALAKKAD FLYING SQUAD, PALAKKAD. 5. THE FOREST CONSERVATOR, OLAVAKKOD CIRCLE, OLAVAKKOD. BY ADDITIONAL A.G. SRI.RANJITH THAMPAN. RESPONDENTS/PETITIONERS: ------------------------------------------- 1. M.K.JOHN, S/O.KURIAN, (DIED) MARIKUDY VALAYIL, PAZHANGANAD, KIZHAKKAMBALAM. 2. MOLY KURIAN, W/O.KURIAN, DO. DO. 3. BINU KORAH, W/O.KORAH JOHN, DO. DO. 4. SUSAN ZACHARIAH, MARIKUDY VALAYIL DO.DO. W.A.No.1276/2000 -2- ADDL.5. ANNU MATHEW, W/O.MATHEW JOHN, RESIDING AT MARIKUDY VALAYIL, PAZHANGANAD, KIZHAKKAMBALAM VILLGE, KUNNATHUNAD TALUK. ADDL.6. REENA PAUL, W/O.K.G.PAUL, RESIDING AT MARIKUDY VALAYIL, DO-DO. ADDL.7. JOHN KURIEN, S/O.KURIEN JOHN, RESIDING AT DO. DO. (Additional respondents 5 to 7 were impleaded as per order on I.A.No.505/2008 dated 5.1.2009) BY ADV. SRI.GEORGE C.P.THARAKAN SRI.M.P.M.ASLAM THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B.Koshy, Ag.C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A.No. 1276 of 2000 ------------------------------------------ Dated, this the 5th day of January, 2009 JUDGMENT J.B.Koshy, Ag.C.J. The four petitioners in the writ petition altogether were the owners of about 60 Acres of land in Sy.No.1687 (Part) of Sholayar Village in Mannarkkad Taluk. They obtained the above lands from M/s.Bhavani Tea and Produce Company Limited under registered sale deeds. They are in possession of the property and they are doing cardamom cultivation. Large number of trees were also there in the property. Even though they applied for permission to cut and remove 683 decayed trees, originally they were granted permission to cut and remove 390 identified trees as per Exts.P6 to P9. Thereafter, by Exts.P10 to P13 orders, those permissions were cancelled. Petitioners challenged the same in the writ petition. 2. An Advocate Commissioner went to the property and inspected the site as per the direction of this Court and he identified W.A.No.1276 of 2000 2 311 trees which are liable to be cut and removed due to decay, diseases, etc. The State was not satisfied with the findings of the above Commissioner. Therefore, on an application, this Court appointed a scientific officer working in the Kerala Forest Research Institute, Peechi to submit a report after inspecting the property. The above expert officer along with the parties visited the place and identified 166 trees belonging to the four petitioners to be cut and removed. The details of the above trees are classified as dead, diseased and wind fallen and dangerous to the life and property. The learned Judge allowed only those trees to be cut and removed. Further, the following directions were given for safeguarding the interest of the State as well as for preventing illegal cutting and removal of trees. “Care must be taken that the petitioners cut and remove only those trees and nothing else. It is the responsibility of respondents 2 and 3 to see that the petitioners scrupulously follow the Appendix 17 to 20 while cutting and removing the trees. If there is any W.A.No.1276 of 2000 3 complaint to the effect that the petitioners really cut and remove any other trees, then respondents 2 and 3 will be personally answerable for the above illegal actions of the petitioners. If possible, either respondent No.2 or the 3rd respondent must be personally present while the operation of cutting and removing is going on.” 3. We are of the opinion that no interference is required in this matter. The fact that Annexure A3 guidelines were issued to identify dead, diseased and wind fallen trees is not a ground for interfering with the impugned judgment because a scientific officer from the Kerala Forest Research Institute with the aid of the parties identified 166 trees belonging to the four petitioners as dead, diseased and wind fallen and dangerous to the life and property, and the Court allowed only those trees to be cut and removed. Contention not raised at the time of granting permission or withdrawal of the permission cannot be raised in appeal and cutting and removal of dead and wind fallen trees as identified by the expert will not create any ecological problem. In fact, the earlier finding was W.A.No.1276 of 2000 4 that it was cultivated with cardamom and at that time when permission was granted, the only dispute was regarding the number of dead, diseased and wind fallen trees. Hence we dismiss the writ appeal. J.B.Koshy, (Ag. Chief Justice) P.R.Ramachandra Menon (Judge) vns