IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 WP(C).No. 22028 of 2006(V) -------------------------- PETITIONER(S): --------------- JOSEPH ABRAHAM, MANAGING PARTNER, ZEENATH ESTATE, (PREVIOUSLY KNOWN AS RAVIVARMA ESTATE), NELLIYAMPATHY.P.O., PALAKKAD DISTRICT. BY ADV. SRI.N.JAMES KOSHY RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT OF KERALA, FOREST AND WILD LIFE (E) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, GOVERNMENT OF KERALA, FOREST DEPARTMENT, THIRUVANANTHAPURAM. SPECIAL GOVERNMENT PLEADER (FOREST) SRI.P.M.POULOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 22028/2006 APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE FOAM A CERTIFICATE. P2. COPY OF THE ACKNOWLEDGEMENT OF REGISTRATION. P3. COPY OF THE DEED DTD.8.11.2000. P4. COPY OF THE ORDER DTD.30.1.82 IN O.A.258/79. P5. COPY OF THE JUDGMENT IN MFA NO.340/82. P6. COPY OF THE NOTIFICATION DTD.26.11.85. P7. COPY OF THE ORDER OF THE TAHSILDAR, CHITTOOR, DTD.21.12.79. P8. COPY OF THE CARDAMOM REGISTRATION CERTIFICATE. P9. COPY OF THE ORDER OF THE DFO DTD.29.11.79. P10. COPY OF THE PETITION DTD.13.5.05 OF THE PETITIONER. P11. COPY OF THE PETITION DTD.4.5.06. P12. COPY OF THE COMMUNICATION DTD.15.6.05. P13. COPY OF THE COMMUNICATION DTD.5.5.06. P14. COPY OF THE PETITION DTD.3.7.06. RESPONDENT(S)' EXHIBITS: Annexure.R2(A) COPY OF THE NOTIFICATION. (B) COPY OF THE MAHAZAR DTD.10.5.06. (C) COPY OF THE MAHAZAR DTD.25.5.06 IN OR.3/06. (D) COPY OF THE MAHAZAR DTD.25.5.06 IN OR 4/06. (E) COPY OF THE ORDER DTD.25.5.06 OF THE DIST. COLLECTOR, PALAKKAD. (F) COPY OF THE ERATTUM NOTIFICATION DTD.17.6.06. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 22028 of 2006 ================== Dated this the 25th day of May, 2010 J U D G M E N T The petitioner owns 133.55 acres of land. Out of the same, 50 acres are cardamom estate and 67 acres are coffee estate. The balance is comprised by roads, buildings, nursery, staff quarters, coolie lines, streams, wind belt, fire belt, orange plantations etc. Proceedings were initiated in respect of 16 acres of land under the Kerala Private Forest (Vesting & Assignment) Act. The matter was taken to the Forest Tribunal. The Tribunal held that the entire 16 acres are not vested with the State. The State filed an appeal, in which, it was held that the 8 acres are private forest vested with the Government and balance 8 acres are liable to be exempted. The petitioner is now aggrieved by Ext.P6 notification issued by the Government under Section 5 of the Preservation of Trees Act notifying 39.25 hectares of the said land as coming within the purview of Section 5 of the Kerala Preservation of Trees Act, 1986. The petitioner's contention is that a notification under Section 5 can only be in respect of tree growth in private forests or in the Cardamom Hills Reserve or any other areas cultivated with cardamom. In view of the fact that 50 acres are cultivated with cardamom and 8 acres are private forest exempted under the Private Forests (Vesting and Assignment) Act, only 58 acres can be notified as w.p.c.22028/06 2 coming within the purview of Section 5 of the Kerala Preservation of Trees Act 1986, is the contention of the petitioner. The petitioner relies on the Division Bench decision of this Court in the Managing Trustee, Arya Vaidya Sala v. State of Kerala & Others [2006 (2) KLJ 438] for the proposition that only in respect of a property comprised in a private forest or Cardamom Hills Reserve or area cultivated with cardamom a notification under Section 5(1) of the Kerala Preservation of Trees Act, can be issued. 2. The 2nd respondent has filed a statement justifying Ext.P6. The primary contention is that for coming within the purview of Section 5, it need not necessarily be actually cultivated with cardamom as such. According to the learned Government Pleader, if any where in the area covered by the notification, cardamom is cultivated, the entire area can be notified under Section 5 of the Act. He also tries to persuade this Court to accept that in the area covered by the notification, cardamom is found scattered. 3. I have considered the rival contentions in detail. 4. Since a decision in this case has to essentially depend upon the invocation of Section 5 of the Kerala Preservation of Trees Act, 1986, I shall extract that section here. “5. 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 w.p.c.22028/06 3 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, by notification in the Gazette, 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, without the previous permission in writing of the authorised officer, cut, uproot, burn or otherwise destroy or cause to be cut, uprooted, burnt or otherwise destroyed any tree in any area specified in the notification under sub-section (1) on any of the grounds specified therein. Explanation I.- For the purposes of this section, the term “tree” shall include any species of tree. Explanation II.- For the purposes of sub-section (1), the expression “private forest” means any land which immediately before the 10th day of May, 1971, was a private forest as defined in the Kerala Private Forests (Vesting and Assignment) Act, 1971.” Therefore, for a land coming within the purview of Section 5, the land should be a private forest or Cardamom Hills Reserve or area cultivated with cardamom. The contention of the learned Government Pleader that the entire area need not necessarily be fully cultivated with cardamom, but if anywhere in the vicinity cardamom is cultivated that would come within the purview of Section 5, does not appeal to me at all. If that interpretation is adopted, then Section 5 has to be struck down as vague, because the vicinity of cardamom cultivation extend to acres and acres and it would lead to arbitrary interpretation as well. The learned Government Pleader relies on the decision of a w.p.c.22028/06 4 learned Single Judge of this Court in Rajasekharan Nair v. Asst. Settlement Officer [1998 (2) KLT 721]. He particularly relies on paragraph 4 of the judgment, which reads thus: '4. It may be true as contended by the petitioner that the land in question from where the petitioner seeks permission to cut and remove the trees on payment of seigniorage rate is not cultivated with Cardamom. To attract S. 5 of the Kerala Preservation of Trees Act the land concerned need not be cultivated with Cardamom. On the other hand, the prohibition contained in S. 5 is applicable “in the Cardamom hill reserve or in any other area cultivated with Cardamom”. If the area is cultivated with Cardamom, and within the area if there is certain islands of properties cultivated with other crops, it cannot be said that such islands of land with other cultivation is out of purview of the prohibition contained in S. 5. In other words, the word area “employed’ in S. 5 to prohibit cutting of trees, is not the land cultivated with Cardamom, but area where cardamom is cultivated. The petitioner does not have a case that the land in question is not within an area where there is cardamom cultivation. In the other hand, it is admitted before me that the petitioner’s predecessor in interest got assigned the property in terms of the Cardamom Registry Rules. Therefore, the property is within the Cardamom cultivated area. So, the prohibition contained in S. 5 of the Kerala Preservation of Trees Act applies even if the property in question is not presently cultivated with Cardamom. So long as that property is within the area where Cardamom is cultivated, it cannot escape the rigours contained in S. 5 of the Kerala Preservation of Trees Act Therefore, Ext. P7 does not proceed on the wrong premises as contended by the petitioner. I am of opinion that actually this decision supports the case of the petitioner. This decision holds that if an area is cultivated with cardamom and within the area if there are certain islands of properties cultivated with other crops, it cannot be said that such islands of land with other cultivation are out of purview of the prohibition contained in Section 5. That means if the area sought to be notified should be principally cultivated cardamom even if inside that area there are some property occupied by some other cultivation that area is not excluded w.p.c.22028/06 5 from the purview of that notification. That essentially means that the area notified as a whole should be principally cultivated with cardamom. If the interpretation put by the learned Government Pleader is to be accepted, then if out of the 100 acres one acre is cultivated with cardamom then the entire 100 acres can be notified under Section 5, which cannot be the object of Section 5. In fact the decision in Arya Vaidya Sala's case (supra) cited by the learned counsel for the petitioner squarely covers the issue. Therefore, I have no doubt in my mind that only those areas actually cultivated with cardamom can be notified under Section 5. 5. Lastly, the learned Government Pleader, relying paragraph 7 of his statement tries to contend that the entire area is scattered with cardamom cultivation. The statement reads: “The petitioner himself admits that 50 acres of the area is principally planted with cardamom. On field inspection, cardamom is found scattered everywhere in the area. ....” This averment is as vague as vague can be. That can be interpreted to mean only the 50 acres cultivated with cardamom and not some other area. The respondents have not chosen to come out with a categoric statement that the entire area notified in Ext.P6 is scattered with cardamom cultivation. As such, I am not inclined to accept the averment in the statement as one constituting a contention that the entire area notified is scattered with cardamom cultivation. w.p.c.22028/06 6 In view of my above findings, I am satisfied that only 58 acres of the petitioner's property can be notified under Section 5. Accordingly, Ext.P6 notification to that extent concerning the petitioner's property is quashed. It would be open to the respondent State to notify the said 58 acres under Section 5 by a separate notification. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge