IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 WP(C).No. 9415 of 2004(U) ------------------------- PETITIONER: ------------ M.K. THOMAS, MANAGING DIRECTOR, MALABAR AGRICULTURAL CO.LTD., K. CHAPPATH P.O., IDUKKI DISTRICT. BY ADV. SRI.RAJU K.MATHEWS RESPONDENTS: ------------- 1. THE DIVISIONAL FOREST OFFICER, KOTTAYAM. 2. THE CONSERVATOR OF FORESTS, HIGH RANGE CIRCLE, KOTTAYAM. BY SPL. GOVERNMENT PLEADER SRI. RANJIT THAMPAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO.9415/2004 ------------------------------------------------------------------- EXT.P1 TRUE COPY OF LETTER DT. 20-3-2002. EXT.P2 REPORT DT. 21-2-2003. EXT.P3 JUDGMENT IN W.P.C.NO. 21441/2003. EXT.P4 ORDER DT. 26-7-2003. EXT.P5 APPEAL DT. 9-8-2003. EXT.P6 PROCEEDINGS DATED 12-12-2003. EXT.P7 ORDER DT. 28-9-99. EXT.P7(a) ORDER DT. 5-3-2000. EXT.P8 JUDGMENT IN O.P.NO. 16073/1996. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R1(a) I.A.92/1997 IN W.P.C.NO. 202/1995. EXT.R1(b) TITLE DEED DT. 8-5-1901. EXT.R1(c) JUDGMENT IN O.P.NO. 2892/87. EXT.R1(d) FULL BENCH DECISION IN S.A.NO.392/1972. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 9415 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 27th May, 2008. J U D G M E N T The petitioner claims to be the owner of certain properties with trees standing thereon. He has sought permission of the authorities concerned for felling the trees. The same has been rejected by Ext. P4 order. The petitioner filed an appeal before the Conservator of Forests, which was rejected by Ext. P6 order. The petitioner is challenging Exts. P4 and P6 orders. The petitioner's contention is that the trees in question stand in the patta land belonging to the petitioner and therefore the orders refusing permission to cut down the trees is against law. 2. A counter affidavit has been filed by the respondents justifying the orders. According to the respondents, the petitioner can seek to cut down the trees only in accordance with the Kerala Preservation of Trees Act and Sections 4 and 5 of the Act impose certain restrictions on cutting trees. The respondents would submit that the very object of the Act is to preserve indiscriminate felling and destruction of trees in the State resulting in soil erosion and destruction of loss of timber wealth of the State and therefore only in very compelling circumstances, permission can be granted to cut down trees in areas covered by Preservation of Trees Act. The respondents would further contend that the petitioner himself has filed I.A. No. 92/1997 in W.P(C) No. 202/1995 before the Hon'ble Supreme Court for identical reliefs and therefore this writ petition is not maintainable. 3. I have considered the rival contentions in detail. 4. Admittedly, the petitioner has sought permission of the authorities concerned for cutting the trees under Section 4 of the Kerala Preservation of Trees Act. Therefore, the petitioner cannot now dispute the fact that permission under the Act is necessary for W.P.C. No. 9415/2004 -: 2 :- cutting down the trees. Section 4 of the Act reads thus: “4. Restriction regarding cutting, etc., of trees: (1) No person shall, without the previous permission in writing of the authorised officer, cut, uproot or burn, or cause to be cut, uprooted or burnt, any tree. (2) The permission under sub-section (1) shall not be refused if-- (a) the tree constitutes a danger to life or property; or (b) the tree is dead, diseased or windfallen: Provided that where permission to cut a tree is granted on the ground specified in clause (a) or clause (b), the authorised officer shall impose as a condition for the grant of such permission the effective regeneration of an equal number of the same or other suitable species of trees; or (c) such cutting is to enable the owner of the land in which the tree stands to use the area cleared or the timber cut for the construction of a building for his own use. (3) No person shall cut or otherwise damages, or cause to be cut or otherwise damaged, the branch of any tree: 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. (4) No person shall, without the previous permission in writing of the authorised officer, destroy any plant of any tree or do any act which diminishes the value of any such plant. (5) Nothing contained in sub-section (1) or sub-section (2) or sub- section (3) or sub-section (4) shall apply in respect of any tree or plant in the compound of any residential building. 6. Notwithstanding anything contained in this section or in any judgment, decree or order of any Court, the owner of any land shall have the right to cut or cause to be cut any tree, other than a tree as defined in clause (e) of Section 2, standing on such land, without obtaining a permission under this section. Provided that where such compound exceeds one hectare in extent, the provisions of this sub-section shall apply only in respect of an extent of one hectare immediately surrounding the residential building.” W.P.C. No. 9415/2004 -: 3 :- Therefore, ordinarily, such permission can be granted only in the circumstances mentioned in the said Section. The contention of the petitioner in the writ petition is that the four trees which are rosewood trees in respect of which permission was sought have matured and the same constitute danger to the property. I find that the finding in Exts. P4 and P6 orders is that the four rosewood trees mentioned in the application submitted by the petitioner are sound healthy trees, which would survive for years to come, giving sizable environmental and ecological benefits to the society. There is a further finding that the land is falling in the highly fragile and erosive High Ranges of Kerala in Idukki district and is situated on the fringe of river Periyar. With the noble object of the Act in mind, I do not think that the impugned orders are in any way arbitrary or unreasonable. The petitioner does not also allege or prove any mala fides on the part of any of the respondents. In the above circumstances, I do not find any merit in the contentions in the writ petition and accordingly, the same is dismissed. Of course, the learned Government Pleader has raised a contention that the trees belong to the Government. I do not propose to go into that question for the purpose of this writ petition and the same is left open to be agitated by the Government, if need arises. Sd/- S. Siri Jagan, Judge. Tds/