Moosa vs The Forest Range Officer
2021 Latest Caselaw 10178 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

     TUESDAY, THE 25TH DAY OF MARCH 2021 / 4TH CHAITHRA, 1943

                       WP(C).No.5842 OF 2021(E)


PETITIONER:

               MOOSA
               AGED 68 YEARS
               S/O. ALAVI HAJI, ITTEKKODAN HOUSE,
               ELAMBULASSERI(POST) VAZHAMPURAM, (VIA) KARAKURUSSI,
               MANNARKKAD TALUK, PALAKKAD DISTRICT PIN 678 595

               BY ADV. SRI.P.K.MOHANAN(PALAKKAD)

RESPONDENTS:

      1        THE FOREST RANGE OFFICER
               FOREST RANGE OFFICE, OTTAPALAM,
               KULAPPULLY (POST) PALAKKAD DISTRICT, PIN 679 122

      2        THE DIVISIONAL FOREST OFFICER,
               DIVISIONAL FOREST OFFICE,
               (POST) KALLEKULANGARA, PALAKKAD, PIN 678 009


OTHER PRESENT:

               SRI.SANDESH RAJA.K, SPL.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD            ON
25.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.5842 OF 2021(E)

                                      2


                           J U D G M E N T

Petitioner is seeking a direction to 2 nd

respondent to dispose of Ext.P3 representation and

to give him permission to cut and remove the dead

rubber trees and to allow him to plant new saplings.

2. Petitioner claims to be the owner of the

land covered by Ext.P1 order in O.A.No.824/1975 of

the Forest Tribunal, Palakkad. According to him the

land is cultivated with rubber alone, though it was

initially a Pepper plantation. This writ petition

was filed alleging that the Forest officials

prevented him from cutting and removing old rubber

trees. Petitioner wants to replace the old rubber

trees aged more than 34 years by new saplings.

3. I heard the learned counsel for the

petitioner and the learned Special Government

Pleader.

4. Learned Government Pleader made available a

copy of the order dated 26.11.2020 passed on Ext.P3 WP(C).No.5842 OF 2021(E)

application submitted by the petitioner on

12.05.2020, by which petitioner was directed to

furnish the details of the trees in the land covered

by Ext.P1 order in O.A.No.824/1975 of the Forest

Tribunal, Palakkad, which are likely to endanger

human life, for taking appropriate action on receipt

of the same.

5. The request of the petitioner in Ext.P3

application was to allow him to cut and remove the

old rubber trees for the purpose of re-plantation. A

perusal of the order passed by the DFO on

26.11.2020 would show that it is passed without

looking into the request made by the petitioner.

6. I have already considered a similar case in

the judgment dated 04.03.2021 in W.P.(C).No.1829 of

2021, where following the dictum laid down in the

judgment of the Division Bench of this Court in

State of Kerala v. Antony Kannattu [2013 (2) KHC

889] directed that petitioner therein shall be WP(C).No.5842 OF 2021(E)

permitted to cut and remove tho old rubber trees

which are being slaughter tapped and which would be

pointed out by the petitioner and directing that

petitioner shall ensure that fresh rubber saplings

would be planted within three months. In the

judgment of the Division Bench it was observed that

cultivation cannot be allowed to be totally

eradicated, taking note of the fact that normal

yielding life of rubber tree is 20-25 years and the

existing trees have to be cut and removed and in

their place rubber trees have to be planted and the

said activity would come under the exemption

provided in Section 5 of the Preservation of Trees

Act, 1986.

7. Therefore petitioner shall submit a fresh

application before the DFO pointing out the old

rubber trees which he has to replace by fresh

saplings. On receipt of such an application

respondents shall issue a notice to petitioner and WP(C).No.5842 OF 2021(E)

prepare a mahazar of the trees standing in his

property covered by Ext.P1, record the number of

rubber trees which the petitioner can point out. The

petitioner shall be permitted to cut and remove

those old rubber trees covered under the mahazar.

Petitioner shall ensure that fresh rubber sapling

would be planted in its place within a period of

three months. The respondents shall prepare a

mahazar within a further period of three months

after re-plantation is completed. It is made clear

that the petitioner shall not cut and remove any

trees other than rubber trees. Proceedings shall be

commenced within a period of 'one month' from the

date of receipt of the application from the

petitioner along with a copy of the judgment.

This writ petition is disposed of accordingly.

Sd/-

P.V.ASHA, JUDGE

AS WP(C).No.5842 OF 2021(E)

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE JUDGMENT DATED 02-

09-1977 IN O.A NO.824/1975 ON THE FILES OF FOREST TRIBUNAL, PALAKKAD

EXHIBIT P2 TRUE COPY OF THE PURCHASE CERTIFICATE DATED 26-04-1984 ISSUED BY THE SREEKRISHNAPURAM LAND TRIBUNAL IN FAVOUR OF THE PETITIONER.

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE 2ND RESPONDENT DATED 12-05-2020 BY THE PETITIONER

EXHIBIT P4 TRUE COPY OF THE RESTORATION CERTIFICATE ISSUED BY THE 2ND RESPONDENT ON 23/01/2014