IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 7TH DECEMBER 2011 / 16TH AGRAHAYANA 1933 WP(C).No. 34094 of 2010(J) -------------------------- PETITIONER --------------- JAMES JOSEPH, AGED 58 YEARS, S/O.LATE P.C.JOSEPH, PARAPARAKATH HOUSE, KANJIKULAM POST, MANNARGHAT (VIA), PALAKKAD DISTRICT. BY ADVS. SRI.P.B.SURESH KUMAR, SENIOR ADVOCATE SRI.U.BALAGANGADHARAN RESPONDENT(S): ------------------- 1. THE DIVISIONAL FOREST OFFICER, MANNARGHAT, PALAKKAD - 678 001. 2. THE FOREST RANGE OFFICER, MANNARGHAT RANGE, MANNARGHAT, POST, PALAKKAD - 678 001. 3. THE PRINCIPAL SECRETARY, FOREST AND WILD LIFE, GOVT. OF KERALA, THIRUVANANTHAPURAM 695001. 4. THE CUSTODIAN AND CONSERVATOR OF FOREST, EASTERN CIRCLE, OLAVAKKODE, PALAKKAD 678001. R1 & 2 SPECIAL GOVERNMENT PLEADER SRI.T.R.RAVI, FOREST THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 7.12.2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK WP(C).No. 34094 of 2010(J) ---------------------------------- APPENDIX ------------ PETITIONER'S EXHIBITS ---------------------------- EXT.P1. COPY OF THE JUDGMENT IN MFA 183/1979 DATED 25.10.1982 OF THIS HON'BLE COURT. EXT.P2. COPY OF THE ORDER IN RP 141/84 IN MFA 183/79 DATED 9.10.1991 OF THIS HON'BLE COURT. EXT.P3. COPY OF THE JUDGMENT IN OP 8636/1994 DATED 25.1.1995 OF THIS HON'BLE COURT. EXT.P4. COPY OF THE LETTER NO.J/1 OA 88/77 DATED 8.2.96 OF THE FIRST RESPONDENT. EXT.P5. COPY OF THE BT RECEIPT NO.6333830 DATED 11.5.2010 EXT.P5(A). COPY OF THE AGRICULTURE WELFARE FUND RECEIPT NO.13 DATED 11.5.2010. EXT.PT(B). COPY OF POSSESSION CERTIFICATE NO.2194/10 DATED 11.5.2010 ISSUED BY VILLAGE OFFICER, PALAKKAYAM. EXT.P6. COPY OF THE ORDER NO.590/96 DATED 20.12.1996 ISSUED BY FOREST RANGE OFFICER, MANNARGHAT. EXT.P6(A). COPY OF THE ORDER NO.233/97 DATED 7.6.1997 ISSUED BY FOREST RANGE OFFICER, MANNARGHAT. EXT.P6(B). COPY OF THE ORDER NO.333/97 DATED 9.10.1997 ISSUED BY FOREST RANGE OFFICER, MANNARGHAT EXT.P7. COPY OF THE PROCEEDINGS NO.EFL-7-5716/2005 DATED 14.9.2009 ISSUED BY CUSTODIAN (ECOLOGICALLY FRAGILE LANDS) & CHIEF CONSERVATOR OF FOREST. EXT.P8. COPY OF THE ERRATUM NOTIFICATION NO.EFL 10-2056/2010 IN GAZETTE NO.26 DATED 8.6.2010. EXT.P9. COPY OF THE MAHASAR DATED 15.9.201 0F FOREST RANGE OFFICER. EXT.P10. COPY OF THE LETTER NO.G1-2634/10 DATED 28.9.2010 OF DFO, MANNARGHAT. VK WP(C).No. 34094 of 2010(J) ----------------------------------- EXT.P10 (A). COPY OF THE SKETCH IN OA 88/77 ISSUED BY DFO, MANNARGHAT. EXT.P11. COPY OF LIST OF TREES ISSUED BY DY. RANGER PALAKAD. EXT.P12. COPY OF THE LETTER DATED 8.10.2010 OF THE PETITIONER. EXT.P12(A). COPY OF THE DECLARATION SUBMITTED BY THE PETITIONER DATED 8.10.2010 EXT.P13. COPY OF THE ORDER NO.OA 88/77 DATED 12.10.2010 OF FOREST RANGE OFFICER, MNGT. EXT.P14. COPY OF THE LETTER NO.G1-6903/10 DATED 20.10.2010 OF DFO, MANNARGHAT. EXT.P15. COPY OF THE APPEAL OF THE PETITIONER, DATED 18.10.2010 BEFORE DFO, MANNARGHAT EXT.P16. COPY OF THE APPELLATE ORDER N.G1/7470/10 DATED 1.11.2010. EXT.P17. COPY OF THE APPLICATION SUBMITTED UNDER RTI ACT DATED 11.10.2010. EXT.P18. COPY OF THE LETTER N0.A1.13406/2010 DATED 9.11.2010. EXT.P17. COPY OF THE NOTIFICATION GO (P) 7/96/F & WLD DATED 17.1.1996 EXT.P18. CPY OF THE APPLICATIN SUBMITTED BY THE PETITIONER UNDER RTI ACT. 11.10.2010. EXT.P19. KERALA GAZETTE, GOVT. OF KERALA KL/TV(N)/12/2006-2008 DATED 15TH NOVEMBER 2006 EXT.P20. COPY OF THE ORDER IN C.C. NO.233/1973 ON THE FILE OF THE TALUK LAND BOARD, MANNARAKKAD DATED 9.1.1978. EXT.P21. COPY OF THE EXTRACT OF SURVEY AND SETTLEMENT REGISTER DATED 3.11.2010. RESPONDENT'S EXHIBITS : NIL ------------------------------ / TRUE COPY / P.A. TO JUDGE VK C.K. ABDUL REHIM,J. ------------------------------------------------- W.P.(c) No.34094 OF 2010 ------------------------------------------------- DATED THIS THE 7th DAY OF DECEMBER, 2011 J U D G M E N T Challenge in this writ petition is against Exts.P13 and P16 orders issued by the respondents 1 and 2 through which permission to cut and remove trees standing in the property belonging to the petitioner, applied for under the provisions of Kerala Promotion of Tree Growth in Non- Forest Area Act, 2005 was refused. The permission was refused on the ground that, by virtue of Ext.P17 notification issued under Section 5 of the Preservation of Trees Act, 1986, cutting and removal of trees from the land in question is prohibited. The petitioner is also challenging Ext.P17 notification, through an amendment brought into the writ petition. 2. The main ground on which Ext.P17 notification is challenged is on the basis that, by virtue of Ext.P1 judgment of this Court in MFA No.83/1979 which was confirmed in Ext.P2 judgment in R.P No.141/1984 it is held that the land in question is not a vested forest coming within the purview W.P.(c) No.34094/2010 -2- of the Kerala Private Forest (Vesting & Assignment) Act, 1971. The contention is that Ext.P17 notification under Section 5 of Preservation of Trees Act, 1986 will be sustainable only with respect to vested forests. The legal position in this regard stands concluded through a Division Bench decision of this Court in Managing Trustee, Arya Vaidya Sala, Kottakkal V. State of Kerla and others (2006 KHC 589). Learned Special Government Pleader (Forest) appearing on behalf of the respondents had conceded the above legal aspect. Hence, in view of the decision cited above, the writ petition is allowed and Ext.P17 notification is hereby quashed. Consequently Exts.P13 and P16 orders are also quashed. The 2nd respondent is directed to consider Ext.P12 application afresh, in the light of the observations contained above, and to pass appropriate orders as early as possible, at any rate within a period of one month from the date of receipt of a copy of this judgment. Sd/- C.K. ABDUL REHIM, JUDGE. AMG true copy P.A. to Judge