Thomas Philip vs Forest Range Officer
2021 Latest Caselaw 8462 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

              THE HONOURABLE MR.JUSTICE N.NAGARESH

  MONDAY, THE 15TH DAY OF MARCH 2021/24TH PHALGUNA, 1942

                   WP(C).No.30812 OF 2016(B)


PETITIONER:

              THOMAS PHILIP, AGED 69 YEARS,
              S/O. LATE V.M.PHILIP, CHANDRAVANAM ESTATE,
              KEERIKKARA POST, VANDIPERIYAR,
              IDUKKI - 683 533.

              BY ADVS.
              SRI.G.HARIHARAN
              SMITHA PRAVEEN
              SMT.A.ANJANA
              SRI.PRAVEEN.H.
              SMT.T.T.SHANIBA

RESPONDENTS:

     1        FOREST RANGE OFFICER, FOREST RANGE OFFICE,
              ERUMELY - 686 509, KOTTAYAM DISTRICT.

     2        TAHSILDAR, PEEREMEDU TALUK - 686 531,
              IDUKKI DISTRICT.

     3        STATE OF KERALA REPRESENTED BY
              PRINCIPAL SECRETARY TO GOVERNMENT,
              FOREST DEPARTMENT, SECRETARIAT,
              THIRUVANANTHAPRUAM - 695 001.

         BY SPECIAL GOVERNMENT PLEADER SRI.SANDESH RAJA K.

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 15-03-2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 WP(C) No.30812/2016
                                       :2 :




                                                                           [CR]


                            N. NAGARESH, J.

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                      W.P.(C) No.30812 of 2016

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                Dated this the 15th day of March, 2021

                             JUDGMENT

~~~~~~~~~

The petitioner is before this Court seeking to quash

Ext.P7 and to allow Ext.P2 application made by the petitioner

taking note of the provisions of the Kerala Promotion of Tree

Growth in Non-Forest Areas Act, 2005.

2. The petitioner states that ownership of 205.80

Acres of plantation land in Survey No.469 and another extent

of 17.15 Acres of plantation land in Survey No.467 in

Manjumala Village, Peermade Taluk in Idukki District, was

purchased by petitioner's father on the basis of grant made by

the Travancore Government, on 25.02.1923. The ownership

of the land in question was purchased by the petitioner's WP(C) No.30812/2016

father paying British Rs.7,728.12 as per Ext.P1 title deed

dated 14.08.1941.

3. The petitioner's father planted several trees and

made valuable improvements in the property. The petitioner

made an application dated 06.04.2006 to the 1 st respondent-

Forest Range Officer seeking NOC for felling 104 rosewood

trees and 40 teak wood trees from the property. And by

Ext.P3, the 1st respondent-Forest Range Officer informed the

petitioner that NOC cannot be granted in view of the fifth

condition of Ext.P1 title deed to the effect that the full right

over all the trees in the properties mentioned in Ext.P1 are

fully vested with the Government.

4. The petitioner thereupon filed W.P.(C)

No.16056/2006. This Court allowed the writ petition and

directed that permission shall be accorded by the Government

within a period of one month, as per Ext.P4 judgment. The

State filed Writ Appeal against Ext.P4 judgment. A Division

Bench of this Court, as per Ext.P5 judgment, set aside the

judgment of the learned Single Judge and directed the 1st WP(C) No.30812/2016

respondent to consider the request of the petitioner and pass

appropriate orders. The 1st respondent, however, rejected the

request of the petitioner as per Ext.P7. Aggrieved by Ext.P7

communication, the petitioner has filed this writ petition.

5. Learned counsel for the petitioner argued that

Ext.P7 is arbitrary and unsustainable. The interpretation

made by the 1st respondent on Section 3(1) of the Kerala

Grants and Leases (Modification of Rights) Act, 1980 is not

applicable to the petitioner as Ext.P1 deed is not a grant, but a

title deed. The learned counsel for the petitioner further

argued that the 1st respondent did not consider the issue in

the light of the provisions of the Kerala Promotion of Tree

Growth in Non-Forest Areas Act 2005, as directed by this

Court in Ext.P5 judgment.

6. There is no provision enabling the 1 st respondent to

prevent the petitioner from cutting and removing the trees,

contended the counsel for the petitioner. If the 1 st respondent

had considered Section 6 of the Kerala Promotion of Tree

Growth in Non-Forest Areas Act 2005, he would have allowed WP(C) No.30812/2016

Ext.P2 application, argued the counsel for the petitioner.

7. The 1st respondent filed a statement opposing the

writ petition, through Special Government Pleader (Forests).

The learned Special Government Pleader (Forests) argued

that the requirement of the petitioner is to cut and remove the

rosewood trees. The case will not come under the purview of

the Kerala Promotion of Tree Growth in Non-Forest Areas Act

2005, as the property held by the petitioner is a grant which

will come under the purview of the Kerala Grants and Leases

(Modification of Rights) Act, 1980. In view of Section 3(A) of

the said Act, 1980, the petitioner can appropriate for his own

use all trees standing on the land except teak, Blackwood,

ebony, Karam Thali and sandalwood, subject to payment of

seigniorage at the rates specified.

8. Relying on the judgment of this Court in Jose v.

State of Kerala and others [2020 (2) KLT 560], the learned

Special Government Pleader argued that the contention of the

petitioner that only those trees which were actually standing

on the land in question at the time when the grant was made, WP(C) No.30812/2016

are exempt from the provisions of Section 6(1) of the Kerala

Promotion of Tree Growth in Non-Forest Areas Act 2005,

cannot be accepted. This Court has held in the judgment in

Manoj A.N. v. State of Kerala and others [2013 (3) KLT 649]

that if trees are those mentioned in the schedule, those trees

cannot be cut irrespective of whether they were standing in

the land at the time of assignment or came into existence

subsequent to the assignment. Even though trees were

present with the assignment, the assignee has no absolute

right over the trees, contended the Special Government

Pleader, relying on the judgment of this Court in Gopi v.

Tahsildar [2002 (3) KLT 526]. Relying on the Full Bench

judgment of this Court in Majeed v. State of Kerala [2006 (1)

KLT 19], the Special Government Pleader argued that the

rights obtained by the petitioner in terms of Ext.P1 grant is not

absolute. The learned Government Pleader relied on two

unreported judgments of this Court in W.P.(C) No.804/2006

and Crl.M.C. No.7347/2017 also in support of his defence. WP(C) No.30812/2016

9. Heard learned counsel for the petitioner and

learned Special Government Pleader (Forests).

10. The predecessor-in-interest of the petitioner

executed Ext.P1 which is described as a title deed. By Ext.P1,

the Chief Secretary to the Government of Travancore granted

land to the predecessor-in-interest of the petitioner for coffee

or tea cultivation. The fifth condition contained in Ext.P1 title

deed reads as follows:-

"The full right to Royal trees within the grant is reserved and continues to vest in the Government. The Grantee shall be bound to take care of the Royal trees particularised in column 5 of the schedule hereunder written until they are removed or otherwise disposed of by the Government. The Grantee shall also be bound to deliver to the Government all ivory found and other Royalties produced in the land, and all captured elephants, and will be paid the regulated price for the articles of produce, and the regulated reward for the elephant, at the discretion of the Government."

(Emphasis supplied)

In Column No.5 of the Scheduled annexed to the title deed,

the number and description of royalties is shown as "There

are six blackwood trees in Survey No.647. There are 23

blackwood trees in Survey No.649".

WP(C) No.30812/2016

11. The petitioner would contend that the restriction is

only in respect of the 29 blackwood trees made mention in

Ext.P1 title deed and the trees sought to be cut and removed

by the petitioner are those planted by the predecessor-in-

interest of the petitioner. Therefore, the petitioner cannot be

denied NOC to cut and remove those trees which were not

existing at the time of grant and which were planted

subsequently. But, the fifth condition quoted above would

show that the grantee is bound to deliver to the Government

other royalties produced in the land also and Government is

expected to pay regulated price for the articles of produce.

The term 'other royalties produced' would indeed include

subsequently planted royal trees also.

12. The argument of the learned Special Government

Pleader is that the Kerala Grants and Leases (Modification of

Rights) Act, 1980 has divested the petitioner from whatever

rights conferred under the title deed and in the light of Section

4(1), the petitioner is liable to pay seigniorage for any tree cut

and removed from the land. To decide the issue, the impact WP(C) No.30812/2016

of the Kerala Grants and Leases (Modification of Rights) Act,

1980, the Kerala Preservation of Trees Act, 1986 and the

Kerala Promotion of Tree Growth on Non-Forest Areas Act,

2005 on the fifth condition to Ext.P1 Deed has to be

considered.

13. Section 4(1) of the Kerala Grants and Leases

(Modification of Rights) Act, 1980, reads as follows:-

"4. Grantees and lessees to pay current seigniorage rates.-

(1) Notwithstanding anything contained in any law for the time being in force, or in any grant, lease deed, contract or agreement, or in any judgment, decree or order of any court, with effect on and from the commencement of this Act, every grantee and every lessee shall be bound to pay to the Government the seigniorage rates in force for the time being for the timber cut and removed from any land held by him under the grant or lease."

In view of sub-section (1) of Section 4 and the non-obstante

clause therein, the petitioner is liable to pay seigniorage for

the trees proposed to be cut and removed by him. The fifth

condition in Ext.P1 will stand modified to the extent provided

under Section 4(1) of the Act, 1980.

WP(C) No.30812/2016

14. Section 4 of the Kerala Preservation of Trees Act,

1986 mandates that no person shall, without the previous

permission in writing of the authorised officer, cut, uproot or

burn, or cause to be cut, uprooted or burnt, any tree falling

within the ambit of Section 2(e) of the Act. As per Section 5,

the Government may by notification direct that no tree shall be

cut in any area, in a private forest or in Cardamom Hill

Reserve. In this case, none has a case that the land held by

the petitioner is a private forest or Cardamom Hill Reserve.

Therefore, there cannot be any prohibition on the petitioner

under Section 5 of the Act, 1986. The petitioner therefore

need only a previous permission to cut and remove trees as

required under Section 4 of the Act, 1986.

15. The Kerala Promotion of Tree Growth on

Non-Forest Areas Act, 2005 came into force on 08.09.2005.

Section 6 of the said Act reads as follows:-

"6. Right of owners to cut and remove trees in non-forest land -

(1) Notwithstanding anything contained in any other law for the time being in force and subject to the other provisions of this Act, every owner of non-

WP(C) No.30812/2016

forest land in a non-notified area shall have the right to cut and transport any tree, other than sandalwood tree, standing on his land:

Provided that the provision of this sub-section shall not apply to trees, if any, reserved by the Government at the time of assignment of such land or trees standing on any land notified under section 5 of the Kerala Preservation of Trees Act, 1986 (35 of 1986) or the areas notified by the Custodian under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (21 of 2005).

(2) For the purpose of this Act the Government may, by notification in the Gazette, appoint such officers not below the rank of a Forest Range Officer as they think fit to be Authorised Officers (referred to as 'Authorised Officer' in this Act) and may assign to them such local limits as the Government think fit.

(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 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:

WP(C) No.30812/2016

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:

Note - For the purpose of this sub-section all the mangrove areas or cardamom or coffee plantations shall be deemed to be notified areas.

(4) No owner including a small holder shall cut or remove any sandalwood tree in any non-forest area. Such cutting or removal may be done only by the Forest Department in the manner as may be prescribed.

(5) Where a specified tree is to be cut or any timber of a specified tree is to be transported from any non-forest land to any other place, the owner of such tree shall, before cutting the tree or transporting the timber, as the case may be, file before the Authorised Officer having jurisdiction over the area, a declaration containing details such as the survey number of the land from which the tree is to be cut, number of trees, species of trees, quantity of timber and the place to which such timber is being transported, either directly or send it by registered post with acknowledgment due.

(6) Every declaration filed under sub-section (5) shall be acknowledged by the authorised officer forthwith and a copy of the declaration so acknowledged shall accompany the timber during its transport:

Provided that if acknowledgment from the Authorised Officer is not received within twenty days on receipt of the declaration, the same shall be deemed to have been received, if the trees are to be cut and removed from a non-notified area:

Provided further that if timber of a specified tree cut as per sub-section (3) is to be transported from a non-forest land within the notified area, necessary inspection shall be conducted by the Authorised Officer and if it is found permissible, he may issue a transport permit in such form as may be prescribed, which shall accompany the timber during its transportation.

(7) The cutting and removal of trees standing on non-forest areas, owned, controlled or vested in a WP(C) No.30812/2016

Local Self Government Institution and its disposal shall be governed by such rules, as may be prescribed.

(8) An appeal against the order of refusal of permission by the Authorised Officer may be preferred before the concerned Divisional Forest Officer/Wild Life Warden within such time and in such manner as may be prescribed.

Explanation - For the purpose of this Act, the term 'timber' wherever used shall include firewood also."

Therefore, notwithstanding anything contained in any other

law for the time being in force and subject to the other

provisions of the Act, the petitioner will have the right to cut

and transport any tree other than sandalwood. If the petitioner

proposes to cut and remove any specific tree, the only

requirement is that the petitioner has to obtain a declaration

from Forest Range Officer.

16. Thus, an analysis of fifth condition in Ext.P1 Title

Deed, Section of the Kerala Grants and Leases (Modification

of Rights) Act, 1980, Section 4 of the Kerala Preservation of

Trees Act, 1986 and Section 6 of the Kerala Promotion of Tree

Growth on Non-Forest Areas Act, 2005 would lead to the

following conclusions:-

WP(C) No.30812/2016

(1) The fifth condition in Ext.P1 Title Deed will stand modified by the Kerala Grants and Leases (Modification of Rights) Act, 1980, as per which every grantee and every lessee shall be found to pay to the Government the seigniorage rates in force for the timber cut and removed from any land held under the grant or lease.

(2) For cutting, uprooting or burning any tree falling within the definition of tree as contained in Section 2(e) of the Kerala Preservation of Trees Act, 1986, it is necessary to obtain previous permission of the Authorised Officer.

(3) Notwithstanding anything contained in any other law, except in respect of trees:

(i) reserved by the Government at the time of assignment of such land, or

(ii) trees standing on any land notified under Section 5 of the Kerala Preservation of Trees Act, 1986 every owner of non-forest land shall have the right to cut and transport any tree, other than sandalwood tree standing on his land.

17. When the right of the petitioner to cut and remove

104 rosewood trees and 40 teak wood trees is considered, it

is to be noted that there is a condition in Ext.P1 Title Deed WP(C) No.30812/2016

that "the grantee shall also be bound to deliver to the

Government all ivory found and other Royalties produced in

the land" (emphasis supplied). The royal trees planted and

grown after the grant are "other royalties produced" and the

petitioner is therefore bound to deliver them to the

Government. However, in view of subsequent enactment of

the Kerala Grants and Leases (Modification of Rights) Act,

1980 and in view of Section 4(1) thereof, the fifth condition in

Ext.P1 would stand statutorily substituted and the petitioner

shall be bound to pay to the Government the seigniorage

rates in force for the timber cut and removed from any land

held by him under the grant or lease.

18. The right conferred on owners of non-forest land

under Section 6 of the Kerala Promotion of Tree Growth on

Non-Forest Areas Act, 2005 to cut and remove trees, is

notwithstanding anything contained in any other law for the

time being in force. However, the 1st proviso to Section 6(1) of

the Act, 2005 provides that the provisions under Section 6(1)

will not apply to trees, if any, reserved by the Government at WP(C) No.30812/2016

the time of such grant.

19. In the petitioner's case, the royal trees standing at

the time of grant as well as royalties produced in the land

subsequently, are reserved by the then Government.

Therefore, Section 4(1) of the Kerala Grants and Leases

(Modification of Rights) Act, 1980 would apply and the

petitioner will be liable to pay seigniorage rates for the timber

cut and removed from the land held by him.

In view of the above findings, this Court finds no

illegality in Ext.P7 order of the Range Forest Officer. The

challenge against Ext.P7 must therefore fail. However, the

petitioner will be at liberty to make application for removal of

trees on payment of seigniorage, as provided under Section

4(1) of the Kerala Grants and Leases (Modification of Rights)

Act, 1980. With the afore observation, the writ petition is

dismissed.

Sd/-

N. NAGARESH, JUDGE

aks/08.03.2021 WP(C) No.30812/2016

APPENDIX PETITIONER'S EXHIBITS:

EXECUTED ON AUGUST 14,1941 BY THE TRAVANCORE GOVERNMENT THROUGH ITS CHIEF SECRETARY.

EXHIBIT P2 TRUE COPY OF THE REQUEST DATED 6.4.2006 MADE BY THE PETITIO NER BEFORE THE FOREST RANGE OFFICER, ERUMELY.

EXHIBIT P3        TRUE COPY OF THE REPLY     DATED 04.7.2006
                  ISSUED   BY THE FIREST     RANGE  OFFICER,
                  ERUMELY.

EXHIBIT P4        TRUE COPY OF THE JUDGMENT DATED 26TH OF

JUNE, 2013 ISSUED BY THE HON'BLE COURT IN WPC NO. 16056/2006.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 04.2.2016 MADE IN WA NO. 1961/2013 IN WPC NO.

16056/2006.

EXHIBIT P6 TRUE COPY OF THE ARGUMENT NOTES FILED BEFORE THE RESPONDENT ON 05.3.2016.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 07.9.2016 PASSED BY THE 1ST RESPONDENT REJECTING EXT. P2 REQUEST.

EXHIBIT P8        TRUE COPY OF THE GOVERNMENT ORDER DATED
                  11.03.2020   ISSUED    BY   THE   PRINCIPAL

SECRETARY TO GOVERNMENT REVENUE DEPARTMENT ncd