IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 2236 of 1998
1. M.T.JOSEPH
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
For Respondent :GOVERNMENT PLEADER
The Hon'ble the Chief Justice MR.RAJEEV GUPTA
The Hon'ble MR. Justice S.SIRI JAGAN
Dated : 06/10/2005
O R D E R
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Rajeev Gupta, C.J. & S.Siri Jagan, J.@@
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W.A.No. 2236 of 1998 @@
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By the impugned judgment, the learned Single Judge
repelled the challenge of the appellant against
Ext.P9 notification issued by the 1st
respondent-State of Kerala under Section 5 of the
Kerala Preservation of Trees Act, 1986 (for short
`the Act’) prohibiting cutting of trees in the area
referred to therein, which area was exempted from
vesting under Section 3(3) of the Kerala Private
Forests (Vesting & Assignment) Act, 1971, by orders
of the Forest Tribunal, as confirmed by this Court in
appeal, as a property intended for cultivation, in
favour of the father of the appellant which he claims
to have devolved by succession on the appellant.
That judgment is under challenge in this appeal.
2. The contentions of the appellant against
Ext.P9 notification are threefold. (1) In so far as
the land in question had been exempted from vesting
by order of the Forest Tribunal and confirmed by this
Court in Appeal, under Section 3(3) of the Kerala
Private Forests (Vesting and Assignment) Act, 1971,
as a property intended to be cultivated, the
notification essentially interferes with the
statutory right of the appellant under the Kerala
Private Forests (Vesting and Assignment) Act, 1971 to
get the land cultivated and, therefore, is
unsustainable. (2) Ext.P9 notification has been
actuated by mala fides in view of the fact that it
has been issued to negative the rights of the
appellant, which was upheld by the Forest Tribunal
and this Court, after prolonged litigation, at every
stage of which the authorities have opposed tooth and
nail to prevent the predecessor-in-interest of the
appellant and the appellant, from taking possession
of the same. (3) Even assuming that Ext.P9
notification is valid, the same can be taken to have
prohibited cutting of only those trees included in
the definition of tree as contained in Section 2(e)
of the Kerala Preservation of Trees Act, 1986 and not
all trees standing in the property.
3. The first contention of the appellant cannot
be countenanced in view of the purpose for which the
Kerala Preservation of Trees Act, 1986 was enacted
and the over-riding effect of Section 5 of the Act,
under which Ext.P9 notification has been issued,
vis-a-vis the provisions contained in any other laws,
judgment, decree, order of any Court, Tribunal or
other Authority or in any agreement or other
arrangement. The very fact that as per Ext.P1 order
of the Forest Tribunal and Ext.P2 judgment of this
Court in M.F.A. arising out of Ext.P1 order, the
father of the appellant was granted exemption from
vesting of the property in question, under Section
3(3) of the Kerala Private Forests (Vesting and
Assignment) Act, 1971, would categorically go to show
that the land in question is a private forest and the
father of the appellant was granted exemption for the
purpose of cultivating the said land. As such,
Section 5 of the Act which applies to private forest
gets specifically attracted. As is clear from the
statement of objects and reasons of the Act, the Act
has been enacted for preventing indiscriminate
felling and destruction of trees in the State. Since
the Government feared that it may result in quick
denudation of the forest growth and consequent soil
erosion, land slides, flood etc., Government was of
opinion that such a situation is also detrimental to
ecological balance. Government noticed that of late,
felling of trees and destruction of flora and fauna
are reported to be on the increase and that there was
no effective law to prevent this tendency and,
therefore, Government decided to enact a law for
imposing restrictions on the cutting of trees in the
State and regulating cultivation in the hill areas of
the State. This very laudable and absolutely
essential object, in the present day circumstances,
was sought to be achieved by the enactment of the
Kerala Preservation of Trees Act, 1986. Section 5 of
the Act which starts with the non-obstante clause
“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 …….” was
enacted in 1986. Of Course, this was only a
successor of the Kerala Restriction on Cutting and
Destruction of Valuable Trees Act, 1974 and the
Kerala Preservation of Trees and Regulation of
Cultivation in Hill Areas Ordinance, 1983, but
contains more rigorous and stricter provisions in the
context of cutting of trees. The Kerala Private
Forests (Vesting and Assignment) Act was enacted in
1971. As such, the Kerala Preservation of Trees Act
is a later Act. In view of the said fact and the
non-obstante clause in Section 5 of the said Act,
Section 5 of the Act will have an over-riding effect
on any of the provisions in the Kerala Private
Forests (Vesting and Assignment) Act. Therefore,
there is no merit in the contention of the appellant
that the provisions of the Act in so far as they run
counter to the Private Forests (Vesting and
Assignment) Act, 1971 is invalid and unenforceable.
In the above circumstances, the fact that the
appellant’s father was granted exemption from vesting
under the Kerala Private Forests (Vesting and
Assignment) Act, 1971, is of absolutely no relevance
in deciding the validity of Ext.P9 notification
issued under Section 5 of the Act. Therefore, we
find absolutely no merit in the contention of the
appellant that in view of the fact that the
appellant’s father had been granted exemption from
vesting under the Private Forests (Vesting and
Assignment) Act, 1971, for the purpose of
cultivation, prohibition of cutting of trees in the
land would affect the said right of the appellant
Ext.P9 notification is bad in so far as it would
affect his rights under the Kerala Private Forests
(Vesting and Assignment) Act, 1971.
4. In so far as the contention regarding mala
fides is concerned, it is settled law that mala fides
should not only be alleged but also proved by cogent
evidence. In this connection, we also note the law
on the point as discernible from the following
passage in the decision of the Supreme Court in
Indian Railway Construction Co. Ltd., v. Ajay@@
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Kumar, reported in (2003) 4 SCC 579.@@
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“23. Doubtless, he who seeks to@@
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invalidate or nullify any act or order must
establish the charge of bad faith, an abuse or a
misuse by the authority of its powers. While the
indirect motive or purpose, or bad faith or
personal ill will is not to be held established
except on clear proof thereof, it is obviously
difficult to establish the state of a man’s mind,
for that is what the employee has to establish in
this case, though this may sometimes be done. The
difficulty is not lessened when one has to
establish that a person apparently acting on the
legitimate exercise of power has, in fact, been
acting mala fide in the sense of pursuing an
illegitimate aim. It is not the law that mala
fides in the sense of improper motive should be
established only by direct evidence. But, it must
be discernible from the order impugned or must be
shown from the established surrounding factors
which preceded the order. If bad faith would
vitiate the order, the same can, in our opinion,
be deducted as a reasonable and inescapable
inference from proved facts (See S.Pratap Singh v.
State of Punjab, AIR 1964 SC 72). It cannot be
overlooked that the burden of establishing mala
fides is very heavy on the person who alleges it.
The allegations of mala fides are often more
easily made than proved, and the very seriousness
of such allegations demands proof of a higher
order of credibility. As noted by this Court in
E.P.Royappa v. State of T.N., (1974) 4 SCC 3,
courts would be slow to draw dubious inferences
from incomplete facts placed before it by a party,
particularly when the imputations are grave and
they are made against the holder of an office
which has a high responsibility in the
administration.”
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5. In this case, we must hold that the allegation
of mala fides of the appellant remains as an
allegation, the same having not matured into the
status of proof as required under law, for more than
one reason. Firstly, mala fides is a state of mind.
As such, it, as a legal requirement, has to
specifically relate to a person from whose mind the
mala fides have emanated. That can only be a
specified individual and not the post which a
particular individual holds. Therefore, in order to
prove mala fides, it is absolutely necessary under
law that the individual who mans the post against
whom allegations of mala fides are raised is
impleaded in the case in his personal capacity and
not in his official capacity. In the present case,
we find that the allegations of mala fides are raised
against the Custodian of Vested Forests, Kozhikode
and District Forest Officer, Mannarkad. The
appellant has not chosen to implead the persons who
were manning the posts at the relevant time, in their
personal capacity. Further, between 26-3-1980 (date
of order of Forest Tribunal) and 27-8-1990 (date of
order of Ext.P4 judgment, directing restoration of
possession of the land to the appellant), the persons
manning the posts of respondents 2 and 3 may have
changed, and it cannot be presumed that all such
individuals were inimically disposed towards the
appellant or his father, especially in the absence of
all of them on record. That being so, we cannot even
advert to the contentions of the appellant on the
basis of allegations of mala fides.
6. Secondly, Ext.P9 notification was issued by
the Government of Kerala, and not by respondents 2
and 3. The allegations of the appellant are that
even after confirmation of the order of the Forest
Tribunal and by this Court in the M.F.A., the
Custodian of Vested Forests and the District Forest
Officer (respondents 2 and 3) refused to hand over
possession of the land to the appellant, which would
go to prove their mala fides and only when all their
efforts to deny possession of the property to the
appellant failed that Ext.P9 notification was issued.
The appellant would request this Court to draw an
adverse inference of mala fides against respondents 2
and 3 taking note of the date of Ext.P4 judgment of
this Court by which respondents 1 to 3 were directed
to restore possession of the property as per Ext.P2
judgment, namely, 27-8-1990 and the date of Ext.P9
notification, namely, 4-4-1991. It must be noted
that the appellant’s property is not the only one
possession of which had to be conceded by the forest
authorities to its original owners pursuant to court
orders. There are scores of other properties
possession of which had been handed over to such
persons as directed by court. In order that the
persons who manned the posts of respondents 2 and 3
should deny such benefits to the appellant alone,
they should have a special mala fide intention as
against the appellant particularly unlike in other
cases. The appellant had neither alleged nor proved
any such special reasons for any such mala fide
intentions on their part. Therefore, we are of
opinion that that circumstance would not, by any
stretch of imagination, lead to any inference of mala
fides. Assuming that respondents 2 and 3 had any
such mala fide intention, we cannot draw an inference
that the 1st respondent-State of Kerala, which issued
Ext.P9 notification, in exercise of its legislative
function, would be moved by any such mala fide
intention of respondents 2 and 3. The appellant
cannot impute any mala fides to a statutory function
of the Government under Section 5 of the Kerala
Preservation of Trees Act. As such, there is
absolutely no merit whatsoever in the contentions of
the appellant based on allegations of mala fides.
This is all the more so since the Divisional Forest
Officer, Mannarkad has filed a counter affidavit in
the writ appeal refuting the allegations of mala
fides and in the original petition a counter
affidavit on behalf of the 1st respondent State of
Kerala has also been filed refuting the allegations
of the appellant.
7. The last contention of the appellant is that
the term “trees” referred to in Ext.P9 notification
must be restricted to the “trees” as defined in
Section 2(e) of the Act. Section 2(e) of the Act
reads thus:
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“2(e). “Tree” means any of the following species@@
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of trees, namely:-
Sandalwood (Santalum album), Teak (Tectona@@
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grandis), Rosewood (dalbergia latifolia), Irul
(Xylia Xylocarpa), Thempavu (Terminalia
tomantosa), Kampakam (hopea parviflora), Chempakam
(Michelia chempaca), Chadachi (Grewua
tukuaefikua), Chandana vempu (Cedrela toona),
Cheeni (Tetrameles nudiflora).”
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Counsel for the appellant would submit that in view
of the said definition, by Ext.P9 notification,
respondents 1 to 3 can prohibit the appellant from
cutting only those species mentioned in the said
definition and not any other tree.
8. We do not think that counsel is well founded
in his submission. Ext.P9 notification has been
issued under Section 5 of the Act. Explanation I to
Section 5 specifically stipulates that for the
purposes of Section 5, the term “tree” shall include
any species of tree. This would show that in respect
of notifications issued under Section 5, the
prohibition under Section 5 need not be limited to
the species mentioned in the definition of “tree” as
defined under Section 2(e). Section 5 is intended at
prohibition of cutting of tree growth in private
forests, Cardamom Hills Reserve and other areas
cultivated with cardamom, for the purpose of which
section the legislature has chosen to incorporate an
inclusive definition as including any species of
trees. On the other hand, Section 4 prohibits trees
in other areas in the State, without written
permission of the authorised officer, for which and
other purposes elsewhere in the Act excluding Section
5, alone the definition in Section 2(e) would be
applicable. The non-obstante clause, by which
Section 5 starts would put this beyond any shadow of
doubt. We note that this issue has been specifically
and elaborately considered by a learned Single Judge
of this Court (K.S.Radhakrishnan, J.)in the decision
of Mathew v. D.F.O, reported in 1997(1) KLT 61. In@@
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the said decision, the learned Single Judge, after
referring to the various provisions of the Act as
also the purposes for which the Act has been enacted
and after a very elaborate consideration of the
various issues involved, has specifically come to the
conclusion that for the purposes of Section 5 of the
Act trees as explained in Explanation I would apply
and not the definition of `tree’ under Section 2(e),
which would apply only for the purposes of Section 4.
The said decision has dealt with every aspect of the
matter and we fully and respectfully approve of the
said decision without any reservation whatsoever.
Since the said decision which succinctly deals with
every aspect of the subject and squarely covers the
field, we do not want to elaborate on the same
either.
In the above circumstances, we do not find any
merit in the writ appeal and the same is dismissed,
but without any order as to costs.
Tds/ Sd/-
.JN
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Rajeev Gupta@@
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(Chief Justice).@@
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Sd/-
S.Siri Jagan@@
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(Judge).@@
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[True copy]
P.S. to Judge.
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Rajeev Gupta, C.J.
&
S.Siri Jagan, J.
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October, 2005.