IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 WP(C).No. 804 of 2006(U) ------------------------ PETITIONER(S): --------------- VARKEY CHACKO, KANNAMPARAMBIL, MULLARINGADU, THODUPUZHA TALUK, VANNAPPURAM VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER, N.M.VARGHESE. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF CONSERVATOR OF FORESTS, THIRUVANANTHAPURAM. 2. DIVISIONAL FOREST OFFICER, KOTHAMANGALAM. 3. DISTRICT COLLECTOR, IDUKKI DISTRICT. R1-R2 BY SR. GOVT. PLEADER (FOREST) SRI.MADHAVANKUTTY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BKA WP(C).No. 804 of 2006(U) APPENDIX PETITIONER'(S) EXHIBITS: EXT.P1 COPY OF SANCTION ORDER ISSUED BY the 3RD RESPONDENT TO THE PETITIONER NUMBERED AS C3-12096/95 DATED 16.08.1995. EXT.P2 COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DISMISSING THE PETITIONER'S APPLICATION FOR TRANSIT PASS NUMBERED AS L1-4389/94 DATED 05.11.2005. RESPONDENT'(S) EXHIBITS: EXT.R2(a) COPY OF THE RESERVE NOTIFICATION EXT.R2(b) COPY OF THE LETTER OF TAHSILDAR, THODUPUZHA, NO.CB.10874/94 DATED 12.09.1994. EXT.R2(c) COPY OF THE LETTER NO.L.DIS./45470/94/C3 DATED 23.02.1995 EXT.R2(d) COPY OF THE ORDER NO.L1.4389/94 DATED 27.03.1995 OF 2ND RESPONDENT ADDRESSED TO RANGE OFFICER, MULLARINGADU. //TRUE COPY// PA TO JUDGE BKA S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.804 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of December, 2011 J U D G M E N T The petitioner is the owner of a land comprised of 36 cents in Survey No.61/1C of Vannapuram Village in Thodupuzha. The land was originally assigned to one Anichan Anichan in the year 1960 by the Harijan Welfare Department under the provisions of the Kerala Government Land Assignment Act, 1960. The petitioner purchased the said land by sale deed No.1827 dated 17.6.1985. In the year 1994, a teak tree standing on the property fell down. The petitioner requested the 2nd respondent for permission to transport the said fallen teak tree to a saw mill. The 3rd respondent issued a sanction order dated 16.8.1995 which is Ext.P1. But when the petitioner requested for a transit pass, the same was dismissed by Ext.P2 order dated 5.11.2005. It is aggrieved by Ext.P2 that the petitioner has filed this writ petition seeking the following reliefs: W.P.(C)No.804 of 2006 -2- “i. issue a writ of certiorari or other appropriate writ order or direction quashing Ext.P2. ii. issue a writ of mandamus or other appropriate writ order or direction directing 2nd respondent not to obstruct the transport and utilization of the Teak tree fallen on the petitioner's property in view of Act No.46 of 2005.” 2. The contention of the petitioner is that the reasons stated in Ext.P2 for refusal to permit the petitioner to remove the teak wood is that, the area in question comes within the Thodupuzha Reserve Forest and therefore trees standing in that area being forest trees cannot be given to the petitioner. According to the petitioner, the tree belongs absolutely to the petitioner and the Government has no right over the same. 3. A counter affidavit has been filed by the 2nd respondent wherein the stand taken is that as per Ext.R2 (a) notification under the Forest Act, the Thodupuzha Reserve within which the land in question falls is a reserve forest. It is submitted that the adjoining areas of the particular plot also comes under the reserve. There was no dis-reservation notification under Section 26 of the W.P.(C)No.804 of 2006 -3- Kerala Forest Act 1961. According to them, the teak wood is at least 75 years old. It has a length of 10 mtrs and girth of 2 mtrs. It was inadvertently failed to notify the reservation of the tree for the Government is the contention raised. It is submitted that since the tree is older than the grant itself, the petitioner has no right over the trees. 4. I have considered the rival contentions in detail. 5. As per interim order dated 26.10.2010 the tree has been sold and the sale proceeds are kept in separate account. 6. The respondents have, on the strength of Ext.R2 (a) stated that the land in question falls within the Thodupuzha Reserve Forest area. The petitioner has not been able to disprove the same. The tree measuring 10 mtrs. in length and 2 mtrs. in girth would naturally be at least 60 years old. The petitioner has not been able to produce the patta issued to the original grantee. It is submitted that the assignment is under the Kerala Government Land Assignment Act. In the rules under the W.P.(C)No.804 of 2006 -4- said Act framed in 1964 the form in which patta has to be issued contain certain conditions. Form of patta is to be issued under Appendix II of the Kerala Land Assignment Rules, 1964. Condition Nos.1 & 2 to the patta reads thus: “1. The full right over all the trees within the grant and specified in the Schedule Vests in the Government and the assignee is bound to take care of all such trees standing on the land at the time of assignment or that may come into existence subsequent to it. 2. The assignee is bound to afford all facilities to the officers of Government in the matter of inspecting the land periodically for checking the trees referred to in condition (1) above and removing them, if necessary: [x x x x] Provided that the military personnel may lease the land assigned to them to others whilst they are away on active service.” 7. The petitioner has not produced the patta to prove whether these conditions are there. I am inclined to assume that these conditions were there in the patta issued to the predecessor -in-interest of the petitioner since these rules have been framed replacing the rules for assignment of Government lands issued under Notifications I and II G.O. (Press) No.1029/Rev. dated 18.10.1958, published by the Travancore - Cochin Government. Therefore I am W.P.(C)No.804 of 2006 -5- inclined to assume that the patta issued to the petitioner's predecessor-in-interest also contained the said conditions of course the conditions are not happily worded. But the purport of the conditions is that if the trees are one of the species mentioned in the schedule, whether the trees were standing on the land at the time of assignment or came into existence subsequent to the assignment, the tree would belong to the Government. The Schedule mentions 4 species of trees namely, teak, black wood, ebony and sandalwood. Admittedly this tree is a teak tree. Therefore going by the conditions mentioned above, the full right over all trees within the grant standing on the land at the time of assignment or that may come into existence subsequent to it belongs to the Government. If those conditions are applied, the petitioner has no right over the trees. Apart from the same admittedly the assignment is in the year 1960. The petitioner has not been able to disprove the contention of the respondents that the tree having a length of 40 ft. and girth of 90 inches must be at least 60 years old. W.P.(C)No.804 of 2006 -6- The tree fell down in 1995. The assignment was in 1960. Going by the age of the tree, the tree must have come into existence years before the assignment. For all these reasons, I am not inclined to exercise my discretionary jurisdiction in favour of the petitioner. Accordingly the writ petition is dismissed. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/