Kerala High Court
Unnikrishnan.R vs State Of Kerala on 15 February, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
THURSDAY, THE 15TH DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945
WP(C) NO. 43370 OF 2023
PETITIONER:
UNNIKRISHNAN.R.
AGED 56 YEARS
S/O.LATE RAGHAVAN P.A., PEZHUMKODU HOUSE, NECHUR
P.O., THOLANOOR VILLAGE, KUTHANOOR-II, PALAKKAD
DISTRICT, PIN - 678722
BY ADVS.
DINESH MATHEW J.MURICKEN
VINOD S. PILLAI
MOHAMMED THAYIB N.M.
NAYANA VARGHESE
RIA VARGHESE
JERRY PETER
SEBA SHAJAHAN
RESPONDENTS:
1 STATE OF KERALA
REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE
DEPARTMENT, ROOM NO.117A, 1ST FLOOR, ANNEXE-I,
SECRETARIAT, STATUE JUNCTION, THIRUVANANTHAPURAM
GENERAL.P.O., THIRUVANANTHAPURAM DISTRICT, PIN -
695001
2 THE DIVISIONAL FOREST OFFICER
DIVISIONAL FOREST OFFICE, KOTTEKULAM-MELARCODE,
FOREST OFFICE ROAD, NENMARA.P.O., PALAKKAD
DISTRICT, PIN - 678508
3 THE FOREST RANGE OFFICER
FOREST RANGE OFFICE, ALATHUR NENMARA.P.O.,
PALAKKAD DISTRICT, PIN - 678508
OTHER PRESENT:
SPL.GP - T.P.SAJAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C). No.43370 of 2023 :2:
VIJU ABRAHAM, J.
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W.P.(C) No.43370 of 2023
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Dated this the 15th day of February, 2024
JUDGMENT
The petitioner has approached this Court challenging Exts. P9
and P10 orders, whereby the application submitted by the
petitioner has been rejected only in the light of Section 5 of the
Kerala Preservation of Trees Act, 1986.
2. The petitioner submits that the property covered by Ext.P1
partition deed was the subject matter of the proceedings before the
Forest Tribunal and as per Ext.P2, the said property was exempted
under Section 3(2) of the Kerala Private Forests (Vesting &
Assignment) Act, 1971, which was confirmed by this Court in
Exts.P3 and P4. A certificate of purchase for fixation of tenure for
the purchase of janmam right was issued by the Land Tribunal,
Coyalmannam as per Ext.P5. Later, the property was restored to
the petitioner as per Ext.P7 mahazar dated 18.05.2013. Thereupon
the petitioner submitted an application before the 2 nd respondent
seeking permission to cut and remove the rubber trees in the above
said property, which is more than 40 years old, for the purpose of
replanting. The said application was disallowed by the 3 rd
respondent as per Ext.P8 relying on Section 5(1) of the Kerala
Preservation of Trees Act, 1986. Though an appeal was preferred
before the 2nd respondent, the same was also dismissed as per
Ext.P9. Thereafter the petitioner has preferred a revision petition,
which was also rejected by the 1st respondent as per Ext.P10 order.
3. The petitioner submits that the issue raised in this writ
petition is covered in his favour by the judgment in W.P.(C)
No.38335 of 2023 and the judgment of this Court in State of
Kerala and Another v. Antony Kannattu [2013 (2) KHC 889],
wherein paragraphs 8 and 9 reads as follows:
"8. Exhibit P8 is the notification issued under sub-
section (1) of the aforementioned Section 5, that, no tree
standing in the area specified in the Schedule to Exhibit
P8 shall be cut, uprooted, burnt or otherwise destroyed
except on the grounds stipulated in clause (a) and clause
(b) of sub-section (1) of Section 5. The specific prayer in
Exhibit P9 made by the respondent before the authority
was that the rubber trees in the property are no longer
capable of producing yield, by reason of age, and they
have to be cut and removed for the purpose of planting
fresh rubber trees. We notice that the exemption
provided under the Vesting Act is specifically on the
ground of the lands being held with an intention to
cultivate the same. It necessarily postulates a
permission for cultivation, when the exemption has been
granted. By Exhibit P1, the exemption is abundantly
clear and the restoration too was effected on the basis of
Exhibit P1.The State having not challenged Exhibit P1,
the restoration of land on the basis of the intention to
cultivate has become final.
9. The attempt of the authorities, now, on the ground of
ecological imbalance would lead to a consequence of the
respondent being not able to enjoy the fruits of such
restoration. We cannot permit that; nor is that the
purpose that is emanating from the Trees Act and the
provisions thereof. We notice that Exhibit P8 notification
has, by nature of an exception, extracted the stipulations
in clauses (a) and (b) of subsection (1) of Section 5. The
exceptions provided are with respect to a tree which
constitute a danger to life or property and when the tree
is dead, diseased or windfallen. The rubber trees having
fully yielded and not being viable to be maintained
thereafter, definitely would fall under the said
stipulation."
Petitioner further submits that relying on the judgment in Antony
Kannattu's case cited supra, this Court in Aboobacker T.K v.
Forest Range Officer, Ottapalam & Others reported in [2016
(4) KLJ 510] considered a similar issue and granted permission to
cut and remove rubber trees. Paragraphs 8,9,10 and 14 of the
judgment reads as follows:
"8. It is well accepted that rubber trees are grown for
extracting latex, and the trees for the purpose of
extracting latex have a tenure, and it is also an accepted
principle, the trees can be tapped at the most for a
period of 25 years. Thereafter, slaughter tapping is done
and the trees are cut and removed and thereafter new
saplings are planted. This is the procedure followed in
rubber plantation. After the maximum period of drawing
latex and the slaughter tapping is effected, the trees lose
its value as an agricultural crop, and it can be termed as
'dead' so far as its use is concerned. The Chambers
Concise Dictionary defines 'dead' as follows: "no longer
alive; inanimate; out of play; out of use; obsolete;
inactive; unproductive etc.
9. In that view of the matter, taking note of Ext.P1 order
of the Tribunal, which has become final, and that the
petitioner intends to cut and remove the rubber trees
standing in the property, and re-plant with new saplings,
ought to have passed necessary orders taking into
account these vital aspects. Merely because there is a
prohibition created under Sec.5 of Act, 1986, that does
not mean that the trees cannot be cut and removed at
all. Sec.5(1) takes care of cutting and removing of trees
on two grounds: (a) the trees constitute a danger to life
or property; or (b) the tree is dead, diseased or wind-
fallen.
10. Therefore, on a reading of the said provision, it is
specific and distinct that there is no total prohibition of
cutting and removing the trees. On the other hand, it is
an enabling provision for cutting and removing trees
under the specified circumstances mentioned
thereunder. As discussed above, rubber trees, as an
agricultural produce, have a maximum life. After the
specified period of drawing latex, the trees become
defunct and dead in all sense as an agricultural produce.
Rubber trees are grown by farmers to secure latex and
thereby earn livelihood out of the same. Therefore, when
the trees become defunct and dead, livelihood is lost.
Every farmer is entitled as of right to cut and remove
the trees and plant the area with new saplings. This is
the recognized practice so far as the State of Kerala is
concerned. True, as provided under Explanation I to
Sec.5(2) of Act, 1986, the term "tree" is defined as any
species of tree. However, as discussed above, when it
has become dead vis-a-vis its utility, it is to be cut and
removed.
11. xxx xxx xxx
12. xxx xxx xxx
13. xxx xxx xxx
14. Taking into account the respective submissions made
across the Bar and taking note of the law laid down by
the Division Bench of this Court in the aforesaid
judgment, Ext.P7 order passed by 3 rd respondent is
arbitrary and illegal and therefore it is quashed.
Accordingly, petitioner is permitted to cut and remove
the rubber trees standing in the property, under the
supervision of any forest officials appointed by the
competent D.F.O, and it should be ensured that the area
is replanted with fresh saplings. The procedure so
undertaken by the petitioner shall be scrutinized by the
forest officials and sufficient records shall be retained in
order to ensure that the directions issued are complied
with by the petitioner in its fullest sense."
4. The learned Special Government Pleader refers to the
statement filed by the 2nd respondent, especially paragraph 9,
which reads as follows:
"It is submitted that even though the petitioner has
submitted that he has filed the application to cut and
remove the old rubber trees for replanting, he has not
submitted any proposal or schedule with an undertaking
that the old rubber trees which are cut and removed,
new saplings will be planted in accordance with the
schedule. So the averments of the petitioner that he
wants to cut and remove the old rubber trees for
replanting cannot be considered or cutting and
removing the rubber trees from the property of the
petitioner which is notified u/s Section 5 of the Kerala
Preservation of Trees Act. It is submitted that if the
petitioner submits a proposal/application for cutting and
removing the old rubber trees with a replanting
schedule before the Hon'ble court with necessary
undertaking that the schedule followed and that no trees
other than the old rubber trees will be felled and
replanting will be completed within a time frame fixed
by this Hon'ble Court and if this Hon'ble court find merit
in the above undertaking and directs the respondents to
oversee compliance of the replanting schedule and
necessary passes for cutting and removing the trees will
be issued. The same can be considered by this Hon'ble
court as there is an undertaking by the petitioner before
this Hon'ble court that the replanting will be carried
out."
The learned counsel for the petitioner submits that he is ready and
willing to comply with the procedures provided in paragraph 9 of
the statement filed by the 2nd respondent.
In view of the declaration of law as stated above and the
undertaking of the petitioner that necessary steps will be taken to
comply with the procedures as described in paragraph 9 of the
statement filed by the 2nd respondent, there will be direction to the
3rd respondent to permit the petitioner to cut and remove the trees
as requested in the application dated 28.03.2019, after complying
with the procedures as undertaken by the petitioner, within a
period of one month from the date of receipt of a copy of this
judgment. To facilitate reconsideration of the application dated
28.03.2019, Exts.P8 to P10 orders are set aside.
The writ petition is disposed of as above.
Sd/-
VIJU ABRAHAM
JUDGE
sm/
APPENDIX OF WP(C) 43370/2023
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE PARTITION DEED
NO.4012/1984 OF SRO, ALATHUR EXECUTED
BETWEEN THE PETITIONERS AND OTHERS DATED
23.11.1984
Exhibit P2 TRUE COPY OF THE ORDER IN O.A.78/1975
DATED 07.06.1977 PASSED BY FOREST
TRIBUNAL PALAKKAD
Exhibit P3 TRUE COPY OF THE JUDGMENT IN MFA
NO.53/1978 DATED 07.07.1980 PASSED BY THE
HIGH COURT OF KERALA
Exhibit P4 TRUE COPY OF THE ORDER IN R.P.NO.271/1984
IN MFA NO.53/1978 DATED 08.11.1993 PASSED
BY THE HIGH COURT OF KERALA
Exhibit P5 TRUE COPY OF THE CERTIFICATE OF PURCHASE
NO.800/1978 ISSUED FROM THE LAND
TRIBUNAL, COYALMANNAM DATED 21.08.1978
Exhibit P6 TRUE COPY OF THE JUDGMENT IN
O.S.NO.78/2008 PASSED BY THE MUNSIFF
COURT, ALATHUR DATED 09.06.2009
Exhibit P7 TRUE COPY OF THE MAHAZAR PREPARED BY 3RD
RESPONDENT DATED 18.05.2013
Exhibit P8 TRUE COPY OF THE ORDER ISSUED BY THE 3RD
RESPONDENT DATED 29.03.2019
Exhibit P9 TRUE COPY OF THE ORDER NO.C2-2579/19
DATED 11.06.2019 PASSED BY THE 2ND
RESPONDENT
Exhibit P10 TRUE COPY OF THE ORDER NO.B1/87/2019-
FOREST DATED 29.07.2022 ISSUED BY THE 1ST
RESPONDENT
RESPONDENT ANNEXURES
Annexure R2(a) True copy of the letter No. OA 78/75
dated 23.10.1998 of the DFO Nenmara
containing the details of vegetation on
the schedule property.
Annexure R2(b) True copy of the notification GO(P) No.
61/12 FWLD dated 30.5.2012
Annexure R2(c) True copy of the Order No. A2-1084/16
dated 25.5.2016
