IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 WA.No. 2490 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.24350/1999 Dated 13/02/2008 .................... APPELLANTS/PETITIONERS IN THE OP ---------------------------------------------- 1. V.A.JACOB, S/O.ABRAHAM, VALUMANNEL, TALIPARAMBA (P.O.)KANNUR DISTRICT. 2. V.A.SEBASTIAN, S/O.ABRAHAM, VALUMANNEL, TALIPARAMBA (P.O.)KANNUR DISTRICT. BY ADV. SRI.V.C.JAMES SRI.GEORGE MECHERIL RESPONDENTS: RESPONDENTS IN THE OP ------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, FOREST ENVIRONMENT AND WILD LIFE (E) DEPT., GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 3. FOREST RANGE OFFICER, TALIPARAMBA, KANNUR DISTRICT. SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENER FOR R1 TO 3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.SURENDRA MOHAN, JJ. ----------------------------------------- W.A.No.2490 of 2008 ----------------------------------------- Dated this the 1st day of July, 2009 JUDGMENT Kurian Joseph,J. Appellants are the writ petitioners in O.P. No.24350/2008. They approached this court with the following prayers:- (a) Issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P2 notification S.R.O.No.4/86 dated 30-12-1985 issued by the second respondent. (b) direct the respondents to modify Ext.P2 notification by giving permission to the petitioners to fell such of the trees which are not referred to in Sec.2(e) of the Kerala Preservation of Trees Act 1986 (Act 36/1986) and of other trees which are not of such value, to enable the petitioners to cultivate atleast cardamom itself on the lands held by the petitioners for the time being. According to the petitioners they are the owners in possession of W.A.No.2490 of 2008 -:2:- an extent of 10.120 hectares of land known as 'Valumannel Estate' situated in R.S.No.292/1A of Naduvil Amsom, Taliparamba Taluk, Kannur District. It is submitted that 15 acres is fully cultivated with cardamom and the rest 10 acres is the wind belt. Still further it is contended that unless the over grown tree growth is removed, the petitioners will not be in a position to effectively maintain the estate by cultivating with cardamom. Their initial attempt was to convert the land as a coconut and pepper plantation. That was rejected by the competent authority. While so, the Government issued Ext.P2 notification under Section 5 of the Kerala Preservation of Trees Act, 1986 prohibiting the cutting and removal of trees in the entire area. It is the contention of the petitioners that unless the tree growth is appropriately controlled, it will not be possible for them to cultivate the area with cardamom. Reliance is placed on the decision of the Supreme Court in State of Kerala and others v. M.N.Sankara Narayanan & others, JT 1996(7) S.C. 462. In that case, it is submitted that, the Supreme Court permitted the petitioners therein to cultivate the 60 acres with cardamom and W.A.No.2490 of 2008 -:3:- for facilitating such cultivation the parties were permitted to fell trees which are not referred to in Section 2(e) of the Preservation of Trees Act. Petitioners also pray for a similar treatment. Learned single Judge dismissed the writ petition holding that Sankara Narayanan's decision was rested on the peculiar facts and circumstances of the case and in view of the object of Section 6, trees cannot be cut and removed. We find from the judgment that even according to the learned single Judge “Section 5 was enacted with the specific purpose of prohibiting indiscriminate felling and destruction of trees which results in soil erosion and loss of timber wealth.” The Supreme Court in Sankara Narayanan's case declared that 60 acres belonged to the party therein was not private forest. But there existed forest growth in the said 60 acres of land and the said area was also notified under Section 5 of the Kerala Prohibition of Trees Act, 1986. The Supreme Court in that background held that “the object of the Preservation Act is to preserve forestation and not de-forestation. Consequently, though notification was published prohibiting the respondents from felling the trees; in the W.A.No.2490 of 2008 -:4:- circumstances, we are of the view that the notification should be suitably modified as under. The competent authority is directed to give permission to the respondents to fell such of the trees which are not referred to in Section 2(3) of the Preservation Act and if other trees are not of such value, then necessary permission may be given to the respondents to fell the trees so as to enable him to cultivate cardamom plantation or any other plantation operations permissible under the law so that respondents would enjoy 60 acres of the land, the benefit flowing from the earlier judgment.” The petitioners submit that they also want to enjoy their land as a cardamom cultivated area. If that be so, if the tree growth in that land stands in the way of the area being cultivated with cardamom, it is certainly open to the petitioners to point out that matter before the Government so that in the light of the judgment of the Supreme Court, appropriate modification, if required, will be made in Ext.P2 notification. But the petitioners face another problem as pointed out by the learned Additional Advocate General. It is submitted that the area has been notified as the ecologically fragile land. W.A.No.2490 of 2008 -:5:- Being a pre 2005 notification, it will be open to the petitioners to approach the Custodian under Section 19(3) of the Act in which case the expert Committee will have to take necessary steps for inspecting and filing a report before the Custodian and based on the report, the Custodian is free to de-notify the land. Therefore, we set aside the judgment of the learned single Judge and dispose of the writ petition with liberty to the writ petitioners to first approach the Custodian under Section 19(3) of the Act and depending on the order passed by the Custodian, to approach the Government for appropriate modification in the light of the observations contained in this judgment. We make it clear that we have not considered the other contentions raised in the writ petition and the directions are issued only in the peculiar facts and circumstances of the case as put forth before us by the learned counsel for the petitioners. We make it clear that it will be open to the petitioners to point out before the Custodian or the Government, as the case may be, the undisputed factual position, if any, regarding the nature of the land in which case necessarily the authorities concerned will take note of the said W.A.No.2490 of 2008 -:6:- position also while passing orders in terms of the judgment. In the event of the petitioner approaching the Custodian as above, appropriate action in accordance with law in the matter will be taken within a period of six months and depending on the orders passed by the Custodian, in case the petitioner approaches the Government, the matter will be examined by the Government and orders in accordance with law in the matter will be passed thereafter within another four months. The writ appeal is disposed of as above. (KURIAN JOSEPH, JUDGE) (K.SURENDRA MOHAN, JUDGE) ahg. KURIAN JOSEPH & K.SURENDRA MOHAN, JJ. --------------------------- W.A.No.2490 of 2008 ---------------------------- JUDGMENT 1st July, 2009