IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 30TH NOVEMBER 2011 / 9TH AGRAHAYANA 1933 WP(C).No. 17568 of 2011(U) -------------------------- PETITIONER(S): -------------- 1. P.KUMARAN, S/O.KRISHNAN, PARAKKOTTIL HOUSE SHOLAYUR. 2. P.K.SUDHEER, S/O.P.KUMARAN, PARAKKOTTIL HOUSE, SHOLAYUR. BY ADV. SRI.T.M.ABDUL LATIFF RESPONDENT(S): --------------- 1. DIVISIONAL FOREST OFFICER, MANNARKKAD-678582. 2. FOREST RANGE OFFICER, AGALI RANGE, AGALI-678581. 3. DEPUTY RANGER, SHOLAYUR FOREST STATION, SHOLAYUR-678581. BY SPL. GOVT. PLEADER SRI. M.P.MADHAVANKUTTY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BKA WP(C).No. 17568 of 2011(U) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL. EXT.P2 COPY OF THE APPLICATION SUBMITTED BY the FIRST PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL. EXT.P3 COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL. EXT.P4 COPY FO THE APPLICATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 2ND RESPONDENT DATED NIL EXT.P5 COPY OF THE REPORT DATED 05.05.2010 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXT.P6 COPY OF THE REPORT DATED 05.05.2010 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXT.P7 COPY OF THE REPORT DATED 05.05.2010 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXT.P8 COPY OF THE REPORT DATED 05.05.2010 SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. EXT.P9 COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 1ST RESPONDENT DATED NIL. EXT.P10 COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE FIRST RESPONDENT DATED NIL. EXT.P11 COPY OF THE APPLICATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE FIRST RESPONDENT DATED NIL. EXT.P12 COPY OF THE APPLICATION SUBMITTED BY THE 2ND PETITIONER BEFORE THE 1ST RESPONDENT DATED NIL. EXT.P13 COPY OF THE JUDGMENT PASSED BY THIS HON'BLE COURT IN WP(C) NO.22818 OF 2010 DATED 06.09.2010. EXT.P14 COPY OF THE ORDER NO.C-383/2010 DATED 08.11.2010 OF THE 2ND RESPONDENT. EXT.P15 COPY OF THE ORDER NO.C-370/2010 DATED 08.11.2010 OF THE 2ND RESPONDENT. WP(C).No. 17568 of 2011(U) EXT.P16 COPY OF THE ORDER NO.C-371/2010 DATED 08.11.2010 OF THE 2ND RESPONDENT. EXT.P17 COPY OF THE ORDER NO.C-348/2010 DATED 08.11.2010 OF THE 2ND RESPONDENT. EXT.P18 COPY OF THE JUDGMENT DATED 08.12.2010 PASSED BY THIS HON'BLE COURT IN WP(C) NO.36636/2010. EXT.P19 COPY OF THE APPEAL DATED 17.12.2010 FILED BY THE 1ST PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P20 COPY OF THE APPEAL DATED 17.12.2010 FILED BY THE 1ST PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P21 COPY OF THE APPEAL DATED 17.12.2010 FILED BY THE 1ST PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P22 COPY OF THE APPEAL DATED 17.12.2010 FILED BY THE 1ST PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P23 COPY OF THE ORDER NO.G1-8842/10-2 DATED 14.01.2011 PASSED BY THE 1ST RESPONDENT. EXT.P23 COPY OF THE ORDER NO.G1-8842/10-3 DATED 14.01.2011 PASSED BY THE 1ST RESPONDENT. EXT.P23 COPY OF THE ORDER NO.G1-8842/10-1 DATED 14.01.2011 PASSED BY THE 1ST RESPONDENT. EXT.P23 COPY OF THE ORDER NO.G1-8842/10-4 DATED 14.01.2011 PASSED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// PA TO JUDGE BKA ANTONY DOMINIC, J. ================ W.P.(C) NO. 17568 OF 2011 ===================== Dated this the 30th day of November, 2011 J U D G M E N T Heard the learned counsel for the petitioners and also the learned Special Government Pleader appearing for the respondents. 2. The first petitioner is the owner of 18 acres of land comprised in Sy.No.1731/Pt. of Sholayur Village. The second petitioner also owns 6 acres of property in the very same survey number. They submitted Exts.P1 to P4 applications under Section 6 of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 (Act 46 of 2005), seeking permission to cut and remove the trees mentioned therein. The applications were made to the 2nd respondent, who forwarded the same for enquiry of the 3rd respondent. The 3rd respondent submitted Exts.P5 to P8 reports. Subsequently, the applications were rejected on the ground that there was a proposal to issue notification under Section 5 of the Preservation of Trees Act, 1986 in respect of the land. 3. Those orders were challenged before this Court by filing WP(C) No.22818/2010. That writ petition was disposed of by WPC No.17568/11 :2 : Ext.P13 judgment. In that judgment, this Court held that the fact that a proposal for issuing notification under Section 5 of the Preservation of Trees Act was pending could not be a reason for rejecting the applications on that ground. On that basis, quashing the orders challenged, the writ petition was disposed of directing that fresh orders will be passed on the applications. 4. Accordingly, Exts.P14 to P17 orders were passed granting permission sought for by the petitioners in respect of some of the trees. These orders were challenged before this Court in WP(C) No.36636/10. That writ petition was disposed of by Ext.P18 judgment relegating the petitioners to file appeals under Section 6(8) of Act 46 of 2005 referred to above. Accordingly, petitioners filed Exts.P19 to P22 appeals. Appeals were considered by the 1st respondent and were rejected by Exts.P23 to P26 orders. In these orders, the Appellate Authority held that the original authority correctly exercised his powers under Section 6 of Act 46 of 2005 and that Exts.P14 to P17 orders did not call for any interference. It is challenging Exts.P14 to P17 and Exts.P3 to P26 orders, the writ petition is filed. 5. Learned counsel for the petitioners contend that the WPC No.17568/11 :3 : trees mentioned in Exts.P1 to P4 are all wind fallen trees and that in view of the provisions contained under Section 6 of Act 46 of 2005, the application made by them for cutting and removing such trees could not be rejected. However, referring to Exts.P1 to P4 and Exts.P5 to P8 enquiry reports submitted by the 3rd respondent, learned Government Pleader submitted that the application included trees other than those wind fallen. 6. I have considered the submissions made by both sides. Section 6 of Act 46 of 2005 provides for the right of owners to cut and remove trees in non notified areas. Section 6(3) of the Act, which is relied on by both sides read as under: “Section 6(3): The Government may, with a view to preserving tree growth in the interest of protecting the ecology or in public interest by notification in the Gazette direct that no tree standing in any area of non-forest land specified in the notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes a danger to life or property or is wind fallen; Provided that the small holders in the area notified under this sub-section are free to cut and remove any tree except the specified trees; Provided further that the small holders in the area notified under this sub-section may cut and remove any specified tree other than sandalwood only with the prior WPC No.17568/11 :4 : permission in writing of the Authorised Officer and such prior permission shall not be required for the cutting and removal of trees except specified trees; Provided also that the owners other than small holders in an area notified under this sub-section may cut and remove any tree other than sandalwood tree only with the prior permission in writing of the Authorised Officer and such permission shall not be required for the cutting and removal of trees mentioned in the Schedule: Provided also that such permission mentioned in the second and third provisos shall not be refused by the Authorised Officer if the tree constitutes a danger to life or property or is wind fallen:” 7. A reading of this section shows that in order to preserve tree growth in the interest of protecting the ecology and in public interest, it is open to the Government to issue notification in the official gazette and direct that no tree standing in any area of non-forest land specified therein shall be cut, uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes a danger to life or property or is wind fallen. Therefore, even in respect of areas, which are notified under Section 6(3), if trees covered by an application made by a person constitute danger to life or property or is wind fallen, the applicant is entitled to get an order enabling him to cut and remove the WPC No.17568/11 :5 : trees. 8. In so far as this case is concerned, learned counsel for the petitioners asserts that the entire trees mentioned in Exts.P1 to P4 applications and Exts.P5 to P8 reports are wind fallen trees. It is also his case that some of the trees constitute danger to life and property. If as stated by the petitioners, the remaining trees which are covered by Exts.P1 to P4 fall into either of these categories, petitioners are entitled to have an order in their favour. However, this is a factual issue and is a matter to be ascertained by the 2nd respondent. 9. Therefore, I direct that the 2nd respondent will inspect the property of the petitioners, and if he is satisfied that the trees fall into categories which constitute a danger to the life or property or wind fallen, he shall pass fresh orders on Exts.P1 to P4. It is directed that this exercise shall be completed within 6 weeks of production of a copy of this judgment. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp WPC No.17568/11 :6 :