High Court Kerala High Court

Keerampara Panchayat Matsya … vs State Of Kerala on 14 September, 2009

Kerala High Court
Keerampara Panchayat Matsya … vs State Of Kerala on 14 September, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 18114 of 2007(F)


1. KEERAMPARA PANCHAYAT MATSYA KARSHAKA
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REPRESENTED BY THE
                       ...       Respondent

2. THE EXECUTIVE ENGINEER, C A D DIVISION,

                For Petitioner  :SRI.G.SREEKUMAR (CHELUR)

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice ANTONY DOMINIC

 Dated :14/09/2009

 O R D E R
                   ANTONY DOMINIC,J.
                ---------------------
                W.P.(C).No.18114 OF 2007
              ------------------------
         Dated this the 14th day of September, 2009.

                        JUDGMENT

Prayers sought in this writ petition are to quash

Ext.P23 Government Order and to direct the respondents to

allow the petitioner to cut and remove the trees planted in

the leased premises, as per the Tree Patta Scheme. There is

a further prayer to restrain the respondents from

proceeding further to Ext.P23, including to evict the

petitioner from the land mentioned therein.

2. Briefly stated the facts of the case are that,

Government had granted to the petitioner lease of 25

hectors of land lying within the reserved forest, for fish

farming, for a period of 5 years from 1.5.1994, vide

Government Order dated 13.10.1993. Ext.P4 is the lease

deed, for the aforesaid 5 years period. Subsequently, on

14.3.1996, Ext.P3 Government Order was issued, which

WP(c).No.18114/07 2

inter alia provided that extension of lease for another 5 years

can be allowed after the expiry of the current lease period, in

cases where societies such as the petitioner have made

requests in that behalf. Nothing has been placed on record

that any request has been made or that the lease has been

extended beyond 30.4.1999. Clause(7) of Ext.P3 provided

that the societies shall be permitted to plant trees on the

border of the land for preventing silting to the land leased out

for fish farming, subject to the condition that there will be no

right on the land and trees planted after the lease period and

that the societies shall not cut and remove the trees without

the sanction of the Department/Government.

3. According to the petitioner, subsequently, based on

Ext.P25 Government Order, by which a scheme for issuing

Tree Patta in non-forest Government lands in Kerala was

framed by Government and an application was made and

Ext.P10 agreement was entered into between the petitioner

and the Government. It is stated that on the basis of Exts.P10,

WP(c).No.18114/07 3

P11 order was issued by the Village Officer and Ext.P12 Tree

Patta was issued. All these documents were issued in 2005

itself. It is stated that in pursuance to Exts.P10 and P12 trees

were planted in the areas mentioned in Ext.P10 agreement.

4. In the meantime, it would appear that the petitioner

made an application for cutting and removing the trees

planted on the basis of clause (7) of Ext.P3 order dated

14.3.1996. Thereafter they filed O.P.No.12389/99 before this

court seeking permission for cutting and removing the timber

allegedly planted on the basis of clause(7) of Ext.P3. That

Original Petition was disposed of by Ext.P5 judgment directing

the petitioner to move the authorities in terms of clause(7) of

Ext.P3 itself. Accordingly, the matter was taken up and by

Ext.P6, the request made in that behalf was considered and

the Government rejected the request. Reasons stated in Ext.P6

are reflected in paragraphs 6,7 and 8 of the order which is

extracted below for reference.

WP(c).No.18114/07 4

“On the above request, the Executive Engineer,

PVIP Division No.1, Perumbavoor in his letter read

5th above reported that the lease period of 5 years

sanctioned to the petitioner expired on

30.4.1999, but the Sanghom was continuing

occupation of the Government property for over

five years based on stay order/extension of stay

orders issued by the Hon. High Court in the OP

read above, without remitting the rent. He had

also reported the difficulty to identify the trees

stated to be planted and naturally grown up. Since

sanction accorded was for planting trees along the

borders of the reservoir in Government property

for the specific purpose of preventing soil erosion

in to the fish farming area, felling and removal of

these trees which number more than 1750

belonging to different genera would enhance soil

erosion and cause severe damage to the reservoir

WP(c).No.18114/07 5

and also to the ecology of the area.

7. The Chief Engineer, Projects-II vide letter cited

endorsed the views of the Executive Engineer.

8. Government have examined the matter in detail

and found that the request of the petitioner Shri.

Kurian Joseph to cut and remove the trees said to

be planted by the Sanghom in the leased out land

cannot be conceded to as it is difficult to

distinguish the planted and naturally grown up

trees which number more than 1750 of different

genera and felling of the same will cause soil

erosion into the reservoir and will seriously affect

the ecology of the area and as per clause 7 of th

G.O.2nd cited i.e., there will be no right to the

Sanghom/Society on the land and trees planted

after lease period and they should not cut out or

remove the plants. Hence the request in the

petition read 4th above is rejected.”

WP(c).No.18114/07 6

5. Petitioner again approached this court by filing WP(c).

No.37345/04 challenging Ext.P6. The main complaint in that

writ petition was that Ext.P6 was passed without hearing them.

Considering the said grievance, this court disposed of the writ

petition by Ext.P7 judgment rendered on 4th July, 2009

directing that, in the event the petitioner makes a fresh

representation the same will be dealt with, after affording an

opportunity of hearing to the petitioner. Accordingly,

representation was filed, petitioner was heard and the

Government rejected the request as per Ext.P23 order. In

Ext.P3 order the claim made by the petitioner for cutting and

removing the trees planted on the strength of clause(7) of

Ext.P3 and also those tress which were allegedly planted on

the basis of Exts.P10, 11, 12 and 25 referred to above have

been dealt with. In so far as the trees planted on the basis of

clause(7) of Ext.P3 are concerned, Government have affirmed

the view taken in Ext.P6 order. In so far as the trees allegedly

planted on the strength of Exts.P10, 11,12 and 25 are

WP(c).No.18114/07 7

concerned, it is seen that the alleged planting was long after

the expiry of the lease and that in terms of Ext.P25, the Village

Officer was to point out the vacant land to those willing to

participate in the scheme and that the petitioner planted trees

without obtaining permission. In the aforesaid background,

this writ petition is filed challenging Ext.P23.

6. First of all, although it is the case of the petitioner

that the lease was extended on the expiry of the initially

granted period on 30.4.1994, there is nothing available on

record to support to this conclusion. On the other hand, it is

the specific case of the Government as reflected in Exts.P6

and P23 Government Order that the lease period had expired

on 30.4.1999. In so far as the trees allegedly planted by the

petitioner on the strength of clause (7) of Ext.P3 order, the

reasons stated in Ext.P6 have been affirmed in Ext.P23 should

be accepted as cogent and I do not see any perversity in the

view taken. In so far as the trees allegedly planted under the

Tree Patta Scheme promulgated under Ext.P23 order are

WP(c).No.18114/07 8

concerned, since the lease period had expired as early as on

30.4.1999, planting of trees allegedly undertaken by the

petitioner on the strength of Ext.P25 is in an area, over which

they had no valid lease. If so, I cannot find fault with the

Government in refusing to grant permission to cut and remove

the trees in that area.

7. On the other hand, if as contended by the counsel for

the petitioner, it was a bona fide action of the petitioner on

the strength of Exs.P10,P11 and P12, it may be open to the

petitioner to claim damages by instituting a civil suit. However,

the petitioner cannot seek a direction to permit them to cut

and remove the timber standing in the reserved forest land.

Writ Petition fails and is dismissed.

(ANTONY DOMINIC)
JUDGE
vi/

WP(c).No.18114/07 9