ORDER
K.A. Abdul Gafoor, J.
1. Petitioner has approached this Court challenging Ext. P4 notification and seeking a declaration that the provisions in the Kerala Preservation of Trees Act, 1986 (the Act) is not applicable to the petitioner’s land measuring 63 acres and comprised in R. S. 6/1 Part of Vettilappara Village of Eranad Taluk in Malappuram District.
2. Exhibit P4 notification has been issued under Section 5 of the said Act prohibiting the
culling and uprooting of trees standing in 63 acres of land scheduled to the said notification. The Explanatory Note attached to the notification shows that the said 63 acres of land was subject matter of O.A. 283/76, and the Forest Tribunal had held that the said 63 acres not form part of the private forests. The Explanatory Note further shows that that judgment of the Tribunal had been confirmed by this court in M.F.A. 525/ 79, and that an attempt to review the judgment was also dismissed by this court. Now, the Government thought of prohibiting, cutting and destroying of any tree and Ext. P4 notification has been issued exercising the powers vested in them under Section 5 of the Act.
3. A reading of Ext. P4 thus shows that the property forming part of the schedule to Ext. P4 is the same as that dealt with in Ext. PI judgment of the Forest Tribunal. Manjeri. The property is situated in Malappuram District. Therefore, it is within the erstwhile Malabar area. These aspects cannot be disputed. It is held in Ext. P1 judgment as follows :
“From the evidence and circumstances of this case, I find that out of the 125 acres of land belonging to the petitioner rubber had been planted in 75 acres of land long prior to 10-5-71. Land which are principally cultivated with rubber prior to 10-5-1971 has been excluded from the definition of the private forest. Therefore, I find that 75 acres of property out of 125 acres of the petitioner’s property is not a private forest”.
This finding has been confirmed by this court even admittedly by the respondents as contained in the Explanatory Note to Ext. P4. Exhibit P1 judgment further discloses that 12 acres out of the said 75 acres has already been exempted by the Forest Tribunal as rubber plantations. Therefore, the balance left over is 63 acres. That also is found to be, in Ext. P1, as not forming part of the private forests.
4. In terms of Section 5 of the Act notwithstanding anything contained in any judgment or decree or any other law or any agreement or arrangement, the Government can in order to preserve the tree, in any private forests or in the cardamom hill reserve or in any other area cultivated with cardamom by notification in the Gazette direct that no trees standing in any such area specified in the notification shall be cut, uprooted, burnt or otherwise destroyed …..”.
The respondents contend that the land mentioned in Ext. P4 is a private forest and even if the land is cultivated with rubber, coffee or pepper, the nature of the land has to be determined based on the records. As per records 63 acres of property, definitely described in the schedule to Exl. P4 is private forests. Therefore, in terms of the meaning ascribed to the term ‘forest’ in the decision reported in T. N. Godavarman Thirumalpad v. Union of India, AIR 1997 SC 1228, it shall be regarded as forests irrespective of the nature of the cultivation therein, because what is relevant is the entry in the record and not the real cultivation.
5. But, the petitioner herein does not depend upon Ext. P1 order, for the purpose of getting Ext. P4 quashed. The petitioner is depending upon Ext. P1 only for the purpose of proving that the area covered by Ext. P4 is not private forest. Admittedly by the Government, the area covered by Ext. P4 is not cardamom hill reserve or cardamom cultivated area, but it is only private forests. When it is private forests certainly notification in the nature under Section 5 can be issued. The petitioner relies on Exl. PI for, the purpose that the area is not private forests. Therefore, the non obstanti clause with reference to the judgment contained in Section 5 does not have any relevance. In other words. Government can sustain Ext. P4 only if it is proved that the area notified in Ext. P4 is a private forests. According to the Government, it is a private forest as per records. The petitioner attempts to disprove, and is attempting to take out it from the purview of private forests, relying on Ext. PI. As already extracted above, the finding of the Tribunal is that the said property is not a private forest. The respondents cannot avoid that finding. When that is not a private forest, naturally, the Government cannot prohibit cutting of trees by issuing a notification under Section 5. On that simple reason itself, Ext. P4 is bad.
6. Even otherwise, based on the revenue records, respondents cannot say that it is private forests. ‘Private forest’ is defined in the Act as per Explanation II in Section 5. The said Explanation reads as follows :
“For the purpose 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”.
The definition of ‘private forest’ in the said Act is as follows : (relevant part alone) — ‘private forest’ means — in relation to Malabar district referred to in Sub-section (2) of Section 5 of the States Reorganisation Act, 1956 (Central Act 37 of 1956) –
(i) any land to which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding –
(A) …..
(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamom and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.
As is found by the Forest Tribunal, the land had been principally cultivated with rubber even prior to 10-5-71 which is the appointed day. Therefore, that comes within the exclusion from the private forests as per the said definition, even if the property is covered by the Madras Preservation of Private Forests Act, 1949. Therefore, even if the records are as if the land is within the area covered by the Madras Preservation of Private Forests Act, 1949; it will not come within the definition of ‘private forest’ for the purpose of the Act as the land had been principally cultivated with rubber, as already found by the Tribunal in Ext. P1 order, even prior to the appointed day. Thus, when the land is not a private forest as defined in the Act, then the notification, Ext. P4, cannot be issued covering the said land, under Section 5 of the Act. Exhibit P4 therefore is beyond the jurisdiction of the Government as the land covered by Ext. P4 is not private forest. Exhibit P4 is therefore quashed. Consequences follow.
O.P. is disposed of as above. No costs.