IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 22028 of 2006(V)
1. JOSEPH ABRAHAM,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE PRINCIPAL CHIEF CONSERVATOR OF
For Petitioner :SRI.N.JAMES KOSHY
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :25/05/2010
O R D E R
S.SIRI JAGAN, J.
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W.P.(C).No. 22028 of 2006
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Dated this the 25th day of May, 2010
J U D G M E N T
The petitioner owns 133.55 acres of land. Out of the same, 50
acres are cardamom estate and 67 acres are coffee estate. The
balance is comprised by roads, buildings, nursery, staff quarters, coolie
lines, streams, wind belt, fire belt, orange plantations etc. Proceedings
were initiated in respect of 16 acres of land under the Kerala Private
Forest (Vesting & Assignment) Act. The matter was taken to the Forest
Tribunal. The Tribunal held that the entire 16 acres are not vested with
the State. The State filed an appeal, in which, it was held that the 8
acres are private forest vested with the Government and balance 8
acres are liable to be exempted. The petitioner is now aggrieved by
Ext.P6 notification issued by the Government under Section 5 of the
Preservation of Trees Act notifying 39.25 hectares of the said land as
coming within the purview of Section 5 of the Kerala Preservation of
Trees Act, 1986. The petitioner’s contention is that a notification under
Section 5 can only be in respect of tree growth in private forests or in
the Cardamom Hills Reserve or any other areas cultivated with
cardamom. In view of the fact that 50 acres are cultivated with
cardamom and 8 acres are private forest exempted under the Private
Forests (Vesting and Assignment) Act, only 58 acres can be notified as
w.p.c.22028/06 2
coming within the purview of Section 5 of the Kerala Preservation of
Trees Act 1986, is the contention of the petitioner. The petitioner relies
on the Division Bench decision of this Court in the Managing Trustee,
Arya Vaidya Sala v. State of Kerala & Others [2006 (2) KLJ 438] for
the proposition that only in respect of a property comprised in a
private forest or Cardamom Hills Reserve or area cultivated with
cardamom a notification under Section 5(1) of the Kerala Preservation
of Trees Act, can be issued.
2. The 2nd respondent has filed a statement justifying Ext.P6.
The primary contention is that for coming within the purview of Section
5, it need not necessarily be actually cultivated with cardamom as
such. According to the learned Government Pleader, if any where in
the area covered by the notification, cardamom is cultivated, the entire
area can be notified under Section 5 of the Act. He also tries to
persuade this Court to accept that in the area covered by the
notification, cardamom is found scattered.
3. I have considered the rival contentions in detail.
4. Since a decision in this case has to essentially depend upon
the invocation of Section 5 of the Kerala Preservation of Trees Act,
1986, I shall extract that section here.
“5. Prohibition of cutting of tree in notified areas. – (1)
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, the Governmentw.p.c.22028/06 3
may, with a view to preserving the tree growth in private forests or in the
Cardamom Hills Reserve or in any other areas cultivated with cardamom,
by notification in the Gazette, direct that no tree standing in any such
area specified in the notification shall be cut, uprooted, burnt or
otherwise destroyed except on the ground that –
(a) the tree constitutes a danger to life or property; or
(b) the tree is dead, diseased or windfallen;
Provided that the provisions of this sub-section shall not be
deemed to prevent the pruning of any tree as required by ordinary
agricultural or horticultural practices.
(2) No person shall, without the previous permission in writing
of the authorised officer, cut, uproot, burn or otherwise destroy or cause
to be cut, uprooted, burnt or otherwise destroyed any tree in any area
specified in the notification under sub-section (1) on any of the grounds
specified therein.
Explanation I.- For the purposes of this section, the term “tree”
shall include any species of tree.
Explanation II.- For the purposes of sub-section (1), the
expression “private forest” means any land which immediately before the
10th day of May, 1971, was a private forest as defined in the Kerala
Private Forests (Vesting and Assignment) Act, 1971.”
Therefore, for a land coming within the purview of Section 5, the land
should be a private forest or Cardamom Hills Reserve or area
cultivated with cardamom. The contention of the learned Government
Pleader that the entire area need not necessarily be fully cultivated
with cardamom, but if anywhere in the vicinity cardamom is cultivated
that would come within the purview of Section 5, does not appeal to
me at all. If that interpretation is adopted, then Section 5 has to be
struck down as vague, because the vicinity of cardamom cultivation
extend to acres and acres and it would lead to arbitrary interpretation
as well. The learned Government Pleader relies on the decision of a
w.p.c.22028/06 4
learned Single Judge of this Court in Rajasekharan Nair v. Asst.
Settlement Officer [1998 (2) KLT 721]. He particularly relies on
paragraph 4 of the judgment, which reads thus:
‘4. It may be true as contended by the petitioner that the land in
question from where the petitioner seeks permission to cut and remove
the trees on payment of seigniorage rate is not cultivated with
Cardamom. To attract S. 5 of the Kerala Preservation of Trees Act the
land concerned need not be cultivated with Cardamom. On the other
hand, the prohibition contained in S. 5 is applicable “in the Cardamom hill
reserve or in any other area cultivated with Cardamom”. If the area is
cultivated with Cardamom, and within the area if there is certain islands
of properties cultivated with other crops, it cannot be said that such
islands of land with other cultivation is out of purview of the prohibition
contained in S. 5. In other words, the word area “employed’ in S. 5 to
prohibit cutting of trees, is not the land cultivated with Cardamom, but
area where cardamom is cultivated. The petitioner does not have a case
that the land in question is not within an area where there is cardamom
cultivation. In the other hand, it is admitted before me that the
petitioner’s predecessor in interest got assigned the property in terms of
the Cardamom Registry Rules. Therefore, the property is within the
Cardamom cultivated area. So, the prohibition contained in S. 5 of the
Kerala Preservation of Trees Act applies even if the property in question is
not presently cultivated with Cardamom. So long as that property is
within the area where Cardamom is cultivated, it cannot escape the
rigours contained in S. 5 of the Kerala Preservation of Trees Act
Therefore, Ext. P7 does not proceed on the wrong premises as contended
by the petitioner.
I am of opinion that actually this decision supports the case of the
petitioner. This decision holds that if an area is cultivated with
cardamom and within the area if there are certain islands of properties
cultivated with other crops, it cannot be said that such islands of land
with other cultivation are out of purview of the prohibition contained
in Section 5. That means if the area sought to be notified should be
principally cultivated cardamom even if inside that area there are some
property occupied by some other cultivation that area is not excluded
w.p.c.22028/06 5
from the purview of that notification. That essentially means that the
area notified as a whole should be principally cultivated with
cardamom. If the interpretation put by the learned Government
Pleader is to be accepted, then if out of the 100 acres one acre is
cultivated with cardamom then the entire 100 acres can be notified
under Section 5, which cannot be the object of Section 5. In fact the
decision in Arya Vaidya Sala’s case (supra) cited by the learned
counsel for the petitioner squarely covers the issue. Therefore, I have
no doubt in my mind that only those areas actually cultivated with
cardamom can be notified under Section 5.
5. Lastly, the learned Government Pleader, relying paragraph
7 of his statement tries to contend that the entire area is scattered
with cardamom cultivation. The statement reads:
“The petitioner himself admits that 50 acres of the area is principally
planted with cardamom. On field inspection, cardamom is found scattered
everywhere in the area. ….”This averment is as vague as vague can be. That can be interpreted to
mean only the 50 acres cultivated with cardamom and not some other
area. The respondents have not chosen to come out with a categoric
statement that the entire area notified in Ext.P6 is scattered with
cardamom cultivation. As such, I am not inclined to accept the
averment in the statement as one constituting a contention that the
entire area notified is scattered with cardamom cultivation.
w.p.c.22028/06 6
In view of my above findings, I am satisfied that only 58 acres of
the petitioner’s property can be notified under Section 5. Accordingly,
Ext.P6 notification to that extent concerning the petitioner’s property is
quashed. It would be open to the respondent State to notify the said
58 acres under Section 5 by a separate notification.
The writ petition is allowed as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge