IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 12TH MARCH 2009 / 21ST PHALGUNA 1930 OP.No. 5373 of 1998(M) ----------------------------- PETITIONER(S): ------------------- T. UNNIKRISHNAN NAIR, S/O. KUNHIMALU AMMA, RESIDING AT THELAKKAD HOUSE, VENGASSERY, OTTAPALAM TALUK. BY ADV. MR.T.C.MOHANDAS MR.T.M.SUNIL MR.ANJU GOVIND RESPONDENT(S): -------------------- 1. THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIVISIONAL FOREST OFFICER, DIVISIONAL FOREST OFFICE, HEMAMBIKA NAGAR, PALAKKAD -9. MR. G.MOHAN, SPL.GOVT.PLEADER MR. SANDESH RAJA - GOVERNMENT PLEADER THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 5373 of 1998 ORDERS ON C.M.P.NOS.55558/01 & 9653/98 IN O.P.NO.5373 OF 1998 CLOSED. 12.3.2009. SD/- S. SIRI JAGAN, JUDGE. APPENDIX EXT.P1: COPY OF ASSIGNMENT DEED DATED 25.1.1937. EXT.P2: COPY OF THE ORDER OF THE FOREST TRIBUNAL PALAKKAD DATED 18.8.1977. EX.P3: COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT OF KERALA IN O.P.NO.3665/96 DATED 8.3.1996. EXT.P4: COPY OF NOTIFICATION ISSUED BY R1 DATED 18.9.1997. EXT.P5: COPY OF COMMUNICATION DATED 5.8.'98 ISSUED BY R2 TO THE PETITIONER. EXT.P6: COPY OF THE COMMUNICATION DATED 17.8.98 ISSUED TO R2 BY THE PETITIONER. EXHIBITS IN REPLY AFFIDAVIT EXT.P5: COPY OF QUESTION AND ANSWERS IN LEGISLATIVE ASSEMBLY. EXT.P6: COPY OF THE REPRESENTATION TO THE CHIEF MINISTER. EXT.P7: COPY OF THE COMMUNICATION FROM THE DISTRICT COLLECTOR, PALAKKAD. RESPONDENTS' EXHIBITS EXT.R1(a): COPY OF LETTER NO.04.963/749(T) DATED 5.8.1998 OF DIVISIONAL FOREST OFFICER, PALAKKAD. EXT.R1(b): COPY OF LETTER NO. NIL DATED 17.8.1998 OF SRI. T. UNNIKRISHNAN NAIR. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.5373 OF 1998 ---------------------------------------- Dated this the 12th day of March, 2009 JUDGMENT When certain private forest belonging to the petitioner was sought to be vested in the Government under the Kerala Private Forest (Vesting and Assignment) Act, the petitioner filed O.A.No.963/74 before the Forest Tribunal, Palakkad claiming exemption from vesting. That O.A. was allowed and the land was exempted from vesting. In spite of the judgment of the Forest Tribunal, the land was not restored to the petitioner. The petitioner approached this Court by filing O.P.No.3665/96 and by Ext.P3 judgment, the respondents were directed to restore the land to the petitioner. Despite the same, the land was not restored to the petitioner. The Government sought extension of time which was also granted. Even after the extended period was over, the land was not restored. While so, the Government issued Ext.P4 notification under the Kerala Preservation of Trees Act 1986 notifying the land under Section 5 of the said Act. Ext.P4 is under challenge before me. O.P.No.5373/98 2 2. The contention of the petitioner is that the land having been exempted from vesting under the Kerala Private Forest (Vesting and Assignment) Act, the respondents cannot prohibit the petitioner's from cutting trees therein for the beneficial enjoyment of the property. The petitioner, therefore, seeks quashing of Ext.P4 notification issued by the Government under the said Act. 3. I have heard the learned counsel for the petitioner as also the learned Government Pleader. The learned Government Pleader would submit that subsequently the properties were notified as ecologically fragile land under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act. Later on, it was found that part of the properties is not liable to be so vested and accordingly, the proceedings were initiated for de-notifying the said land. The learned counsel for the petitioner submits that pursuant thereto, an extent of 1 and odd acres of land has been de-notified. 4. I am not called upon to decide the effect of subsequent event on this original petition, in so far as what is under challenge before me is only validity of Ext.P4 notification. The validity or otherwise of the notification would have no effect on O.P.No.5373/98 3 the notification of the land under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act. The question as to whether the notifications can be issued under the Kerala Preservation of Trees Act in respect of private forest exempted from the purview of the Kerala Private Forest (Vesting and Assignment) Act has been the subject matter of decision of a Division Bench of this Court in Joseph V. State of Kerala [2005(4) KLT 504], in which it has been held by this Court that Section 5 of the Preservation of Trees Act will have overriding effect on any of the provisions of the Kerala Private Forest (Vesting and Assignment) Act and grant of exemption from the vesting of a private forest does not affect the validity of notification under the Kerala Preservation of Trees Act. The validity of the notification has to be decided with reference to Section 5 of the Kerala Preservation of Trees Act, which reads thus: “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 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, O.P.No.5373/98 4 by notification in the Gazettee, 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 otherwsie destroyed any tree in any area specified in the notification under sub-section (1) on any of the grounds specified therein”. That Section clearly applies to private forest. Admittedly, the land in question is a private forest which has only been exempted only from vesting. That being so, Section 5 is clearly attracted to the land in question. Therefore, I do not find any merit in the challenge against Ext.P4 notification. Accordingly, the original petition is dismissed. S. SIRI JAGAN, JUDGE Acd O.P.No.5373/98 5