{"id":73657,"date":"2005-10-06T00:00:00","date_gmt":"2005-10-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-t-joseph-vs-state-of-kerala-on-6-october-2005"},"modified":"2014-02-28T19:12:48","modified_gmt":"2014-02-28T13:42:48","slug":"m-t-joseph-vs-state-of-kerala-on-6-october-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-t-joseph-vs-state-of-kerala-on-6-october-2005","title":{"rendered":"M.T.Joseph vs State Of Kerala on 6 October, 2005"},"content":{"rendered":"
Kerala High Court<\/div>\n
M.T.Joseph vs State Of Kerala on 6 October, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWA No. 2236 of 1998\n\n\n1. M.T.JOSEPH                              \n                      ...  Petitioner \n\n                        Vs\n\n\n1. STATE OF KERALA                         \n                       ...       Respondent\n\n                For Petitioner  :SRI.P.N.KRISHNANKUTTY ACHAN(SR.)        \n\n                For Respondent  :GOVERNMENT PLEADER                      \nThe Hon'ble the Chief Justice MR.RAJEEV GUPTA                    \nThe Hon'ble MR. Justice S.SIRI JAGAN                    \n\n Dated :     06\/10\/2005\n O R D E R\n<\/pre>\n
.PL 58
\n.TM 3
\n.BM 3
\n.SP 2
\n              Rajeev Gupta, C.J. & S.Siri Jagan, J.@@
\n             jAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n              =–=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=@@
\n             j
\n              W.A.No. 2236 of 1998 @@
\n             j
\n              =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=@@
\n             j
\n              Dated this, the 6th  day of October, 2005.@@
\n             j
\n((HDR 0
\n[W.A.No.  2236 of 1998]\t\t-:  # :-\n<\/p>\n
))
\n.HE 1
\n              J U D G M E N T@@
\n             jEEEEEEEEEEEEEEE
\n             Siri Jagan, J.@@
\n             CCCCCCCCCCCCCC
\n             \tBy the impugned judgment, the learned Single Judge
\n             repelled  the  challenge  of  the  appellant  against
\n             Ext.P9     notification    issued    by    the    1st
\n             respondent-State of Kerala under  Section  5  of  the
\n             Kerala  Preservation  of  Trees  Act, 1986 (for short
\n             `the Act’) prohibiting cutting of trees in  the  area
\n             referred  to  therein,  which  area was exempted from
\n             vesting under Section  3(3)  of  the  Kerala  Private
\n             Forests  (Vesting  & Assignment) Act, 1971, by orders
\n             of the Forest Tribunal, as confirmed by this Court in
\n             appeal, as a property intended  for  cultivation,  in
\n             favour of the father of the appellant which he claims
\n             to  have  devolved  by  succession  on the appellant.
\n             That judgment is under challenge in this appeal.\n<\/p>\n
             \t2.   The  contentions  of  the  appellant  against
\n             Ext.P9 notification  are threefold.  (1) In so far as
\n             the land in question had been exempted  from  vesting
\n             by order of the Forest Tribunal and confirmed by this
\n             Court  in  Appeal,  under  Section 3(3) of the Kerala
\n             Private Forests (Vesting and Assignment)  Act,  1971,
\n             as   a   property  intended  to  be  cultivated,  the
\n             notification   essentially   interferes   with    the
\n             statutory  right  of  the  appellant under the Kerala
\n             Private Forests (Vesting and Assignment) Act, 1971 to
\n             get  the   land   cultivated   and,   therefore,   is
\n             unsustainable.   (2)  Ext.P9  notification  has  been
\n             actuated by mala fides in view of the  fact  that  it
\n             has  been  issued  to  negative  the  rights  of  the
\n             appellant, which was upheld by  the  Forest  Tribunal
\n             and  this Court, after prolonged litigation, at every
\n             stage of which the authorities have opposed tooth and
\n             nail to prevent the  predecessor-in-interest  of  the
\n             appellant  and  the appellant, from taking possession
\n             of the  same.    (3)  Even   assuming   that   Ext.P9
\n             notification  is valid, the same can be taken to have
\n             prohibited cutting of only those  trees  included  in
\n             the  definition  of tree as contained in Section 2(e)
\n             of the Kerala Preservation of Trees Act, 1986 and not
\n             all trees standing in the property.\n<\/p>\n
             \t3.  The first contention of the  appellant  cannot
\n             be  countenanced in view of the purpose for which the
\n             Kerala Preservation of Trees Act,  1986  was  enacted
\n             and  the  over-riding effect of Section 5 of the Act,
\n             under which  Ext.P9  notification  has  been  issued,
\n             vis-a-vis the provisions contained in any other laws,
\n             judgment,  decree,  order  of  any Court, Tribunal or
\n             other  Authority  or  in  any  agreement   or   other
\n             arrangement.   The very fact that as per Ext.P1 order
\n             of the Forest Tribunal and Ext.P2  judgment  of  this
\n             Court in  M.F.A.    arising  out of Ext.P1 order, the
\n             father of the appellant was  granted  exemption  from
\n             vesting  of  the  property in question, under Section
\n             3(3) of  the  Kerala  Private  Forests  (Vesting  and
\n             Assignment) Act, 1971, would categorically go to show
\n             that the land in question is a private forest and the
\n             father of the appellant was granted exemption for the
\n             purpose of  cultivating  the  said  land.    As such,
\n             Section 5 of the Act which applies to private  forest
\n             gets specifically  attracted.    As is clear from the
\n             statement of objects and reasons of the Act, the  Act
\n             has   been   enacted  for  preventing  indiscriminate
\n             felling and destruction of trees in the State.  Since
\n             the Government feared that it  may  result  in  quick
\n             denudation  of  the forest growth and consequent soil
\n             erosion, land slides, flood etc., Government  was  of
\n             opinion  that such a situation is also detrimental to
\n             ecological balance.  Government noticed that of late,
\n             felling of trees and destruction of flora  and  fauna
\n             are reported to be on the increase and that there was
\n             no  effective  law  to  prevent  this  tendency  and,
\n             therefore, Government decided  to  enact  a  law  for
\n             imposing  restrictions on the cutting of trees in the
\n             State and regulating cultivation in the hill areas of
\n             the State.    This  very  laudable   and   absolutely
\n             essential  object,  in the present day circumstances,
\n             was sought to be achieved by  the  enactment  of  the
\n             Kerala Preservation of Trees Act, 1986.  Section 5 of
\n             the  Act  which  starts  with the non-obstante clause
\n             “Notwithstanding anything contained in  any  law  for
\n             the time being in force or in any judgment, decree or
\n             order of any Court, tribunal or other authority or in
\n             any  agreement  or  other  arrangement  …….”  was
\n             enacted in  1986.    Of  Course,  this  was  only   a
\n             successor  of  the  Kerala Restriction on Cutting and
\n             Destruction of  Valuable  Trees  Act,  1974  and  the
\n             Kerala   Preservation  of  Trees  and  Regulation  of
\n             Cultivation  in  Hill  Areas  Ordinance,  1983,   but
\n             contains more rigorous and stricter provisions in the
\n             context of  cutting  of  trees.    The Kerala Private
\n             Forests (Vesting and Assignment) Act was  enacted  in
\n             1971.   As such, the Kerala Preservation of Trees Act
\n             is a later Act.  In view of the  said  fact  and  the
\n             non-obstante  clause  in  Section  5 of the said Act,
\n             Section 5 of the Act will have an over-riding  effect
\n             on  any  of  the  provisions  in  the  Kerala Private
\n             Forests (Vesting and  Assignment)  Act.    Therefore,
\n             there  is no merit in the contention of the appellant
\n             that the provisions of the Act in so far as they  run
\n             counter   to   the   Private   Forests  (Vesting  and
\n             Assignment) Act, 1971 is invalid  and  unenforceable.
\n             In   the  above  circumstances,  the  fact  that  the
\n             appellant’s father was granted exemption from vesting
\n             under  the  Kerala  Private  Forests   (Vesting   and
\n             Assignment)  Act, 1971, is of absolutely no relevance
\n             in  deciding  the  validity  of  Ext.P9  notification
\n             issued under  Section  5  of  the Act.  Therefore, we
\n             find absolutely no merit in  the  contention  of  the
\n             appellant   that   in  view  of  the  fact  that  the
\n             appellant’s father had been  granted  exemption  from
\n             vesting   under  the  Private  Forests  (Vesting  and
\n             Assignment)   Act,   1971,   for   the   purpose   of
\n             cultivation,  prohibition  of cutting of trees in the
\n             land would affect the said  right  of  the  appellant
\n             Ext.P9  notification  is  bad  in  so far as it would
\n             affect his rights under the  Kerala  Private  Forests
\n             (Vesting and Assignment) Act, 1971.\n<\/p>\n
             \t4.   In  so  far  as the contention regarding mala
\n             fides is concerned, it is settled law that mala fides
\n             should not only be alleged but also proved by  cogent
\n             evidence.   In  this connection, we also note the law
\n             on  the  point  as  discernible  from  the  following
\n             passage  in  the  decision  of  the  Supreme Court in
\n             Indian Railway Construction  Co.    Ltd.,  v.    Ajay<\/a>@@
\n             CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC        CCCC
\n             Kumar,  reported in (2003) 4 SCC 579.@@
\n             CCCCC<\/p>\n
.SP 1
\n              \t“23.    Doubtless,   he   who   seeks   to@@
\n             i
\n                invalidate  or  nullify  any  act  or  order  must
\n                establish the charge of bad faith, an abuse  or  a
\n                misuse by  the authority of its powers.  While the
\n                indirect  motive  or  purpose,  or  bad  faith  or
\n                personal  ill  will  is not to be held established
\n                except on clear proof  thereof,  it  is  obviously
\n                difficult  to establish the state of a man’s mind,
\n                for that is what the employee has to establish  in
\n                this case, though this may sometimes be done.  The
\n                difficulty   is  not  lessened  when  one  has  to
\n                establish that a person apparently acting  on  the
\n                legitimate  exercise  of  power has, in fact, been
\n                acting mala fide  in  the  sense  of  pursuing  an
\n                illegitimate aim.    It  is  not the law that mala
\n                fides in the sense of improper  motive  should  be
\n                established only by direct evidence.  But, it must
\n                be  discernible from the order impugned or must be
\n                shown from  the  established  surrounding  factors
\n                which preceded  the  order.    If  bad faith would
\n                vitiate the order, the same can, in  our  opinion,
\n                be   deducted  as  a  reasonable  and  inescapable
\n                inference from proved facts (See S.Pratap Singh v.
\n                State of Punjab, AIR 1964 SC 72).   It  cannot  be
\n                overlooked  that  the  burden of establishing mala
\n                fides is very heavy on the person who alleges  it.
\n                The  allegations  of  mala  fides  are  often more
\n                easily made than proved, and the very  seriousness
\n                of  such  allegations  demands  proof  of a higher
\n                order of credibility.  As noted by this  Court  in
\n                E.P.Royappa v.    State  of  T.N., (1974) 4 SCC 3,
\n                courts would be slow to  draw  dubious  inferences
\n                from incomplete facts placed before it by a party,
\n                particularly  when  the  imputations are grave and
\n                they are made against  the  holder  of  an  office
\n                which   has   a   high   responsibility   in   the
\n                administration.”\n<\/p>\n
.SP 2\n<\/p>\n
             \t5.  In this case, we must hold that the allegation
\n             of  mala  fides  of  the  appellant  remains  as   an
\n             allegation,  the  same  having  not  matured into the
\n             status of proof as required under law, for more  than
\n             one reason.   Firstly, mala fides is a state of mind.
\n             As  such,  it,  as  a  legal  requirement,   has   to
\n             specifically  relate  to a person from whose mind the
\n             mala fides  have  emanated.    That  can  only  be  a
\n             specified   individual  and  not  the  post  which  a
\n             particular individual holds.  Therefore, in order  to
\n             prove  mala  fides,  it is absolutely necessary under
\n             law that the individual who  mans  the  post  against
\n             whom   allegations   of  mala  fides  are  raised  is
\n             impleaded in the case in his  personal  capacity  and
\n             not in  his  official capacity.  In the present case,
\n             we find that the allegations of mala fides are raised
\n             against the Custodian of  Vested  Forests,  Kozhikode
\n             and District   Forest   Officer,   Mannarkad.     The
\n             appellant has not chosen to implead the  persons  who
\n             were manning the posts at the relevant time, in their
\n             personal capacity.   Further, between 26-3-1980 (date
\n             of order of Forest Tribunal) and 27-8-1990  (date  of
\n             order  of  Ext.P4  judgment, directing restoration of
\n             possession of the land to the appellant), the persons
\n             manning the posts of respondents 2  and  3  may  have
\n             changed,  and  it  cannot  be  presumed that all such
\n             individuals  were  inimically  disposed  towards  the
\n             appellant or his father, especially in the absence of
\n             all of them on record.  That being so, we cannot even
\n             advert  to  the  contentions  of the appellant on the
\n             basis of allegations of mala fides.\n<\/p>\n
             \t6.  Secondly, Ext.P9 notification  was  issued  by
\n             the  Government  of  Kerala, and not by respondents 2
\n             and 3.  The allegations of  the  appellant  are  that
\n             even  after  confirmation  of the order of the Forest
\n             Tribunal  and  by  this  Court  in  the  M.F.A.,  the
\n             Custodian  of  Vested Forests and the District Forest
\n             Officer (respondents 2 and 3) refused  to  hand  over
\n             possession  of the land to the appellant, which would
\n             go to prove their mala fides and only when all  their
\n             efforts  to  deny  possession  of the property to the
\n             appellant failed that Ext.P9 notification was issued.
\n             The appellant would request this  Court  to  draw  an
\n             adverse inference of mala fides against respondents 2
\n             and  3  taking note of the date of Ext.P4 judgment of
\n             this Court by which respondents 1 to 3 were  directed
\n             to  restore  possession of the property as per Ext.P2
\n             judgment, namely, 27-8-1990 and the  date  of  Ext.P9
\n             notification, namely,  4-4-1991.    It  must be noted
\n             that the appellant’s property is  not  the  only  one
\n             possession  of which had to be conceded by the forest
\n             authorities to its original owners pursuant to  court
\n             orders.    There   are  scores  of  other  properties
\n             possession of which had  been  handed  over  to  such
\n             persons as  directed  by  court.    In order that the
\n             persons who manned the posts of respondents 2  and  3
\n             should  deny  such  benefits  to the appellant alone,
\n             they should have a special  mala  fide  intention  as
\n             against  the  appellant  particularly unlike in other
\n             cases.  The appellant had neither alleged nor  proved
\n             any  such  special  reasons  for  any  such mala fide
\n             intentions on their  part.    Therefore,  we  are  of
\n             opinion  that  that  circumstance  would  not, by any
\n             stretch of imagination, lead to any inference of mala
\n             fides.  Assuming that respondents 2  and  3  had  any
\n             such mala fide intention, we cannot draw an inference
\n             that the 1st respondent-State of Kerala, which issued
\n             Ext.P9  notification,  in exercise of its legislative
\n             function, would  be  moved  by  any  such  mala  fide
\n             intention of  respondents  2  and  3.   The appellant
\n             cannot impute any mala fides to a statutory  function
\n             of  the  Government  under  Section  5  of the Kerala
\n             Preservation of  Trees  Act.    As  such,  there   is
\n             absolutely  no merit whatsoever in the contentions of
\n             the appellant based on  allegations  of  mala  fides.
\n             This  is  all the more so since the Divisional Forest
\n             Officer, Mannarkad has filed a counter  affidavit  in
\n             the  writ  appeal  refuting  the  allegations of mala
\n             fides  and  in  the  original  petition   a   counter
\n             affidavit  on  behalf  of the 1st respondent State of
\n             Kerala has also been filed refuting  the  allegations
\n             of the appellant.\n<\/p>\n
             \t7.   The  last contention of the appellant is that
\n             the term “trees” referred to in  Ext.P9  notification
\n             must  be  restricted  to  the  “trees”  as defined in
\n             Section 2(e) of the Act.  Section  2(e)  of  the  Act
\n             reads thus:\n<\/p>\n
.SP 1<\/p>\n
              “2(e). “Tree” means any of the  following  species@@
\n             i
\n                of trees, namely:-\n<\/p>\n
              \tSandalwood (Santalum album), Teak (Tectona@@
\n             i
\n                grandis),   Rosewood  (dalbergia  latifolia), Irul
\n                (Xylia    Xylocarpa),     Thempavu     (Terminalia
\n                tomantosa), Kampakam (hopea parviflora), Chempakam
\n                (Michelia      chempaca),     Chadachi     (Grewua
\n                tukuaefikua),  Chandana  vempu  (Cedrela   toona),
\n                Cheeni (Tetrameles nudiflora).”\n<\/p>\n
.SP 2
\n             Counsel  for  the appellant would submit that in view
\n             of  the  said  definition,  by  Ext.P9  notification,
\n             respondents  1  to  3 can prohibit the appellant from
\n             cutting only those  species  mentioned  in  the  said
\n             definition and not any other tree.\n<\/p>\n
             \t8.   We  do not think that counsel is well founded
\n             in his submission.    Ext.P9  notification  has  been
\n             issued under  Section 5 of the Act.  Explanation I to
\n             Section  5  specifically  stipulates  that  for   the
\n             purposes  of Section 5, the term “tree” shall include
\n             any species of tree.  This would show that in respect
\n             of  notifications  issued  under   Section   5,   the
\n             prohibition  under  Section  5 need not be limited to
\n             the species mentioned in the definition of “tree”  as
\n             defined under Section 2(e).  Section 5 is intended at
\n             prohibition  of  cutting  of  tree  growth in private
\n             forests,  Cardamom  Hills  Reserve  and  other  areas
\n             cultivated  with  cardamom,  for the purpose of which
\n             section the legislature has chosen to incorporate  an
\n             inclusive  definition  as  including  any  species of
\n             trees.  On the other hand, Section 4 prohibits  trees
\n             in   other   areas  in  the  State,  without  written
\n             permission of the authorised officer, for  which  and
\n             other purposes elsewhere in the Act excluding Section
\n             5,  alone  the  definition  in  Section 2(e) would be
\n             applicable.   The  non-obstante  clause,   by   which
\n             Section  5 starts would put this beyond any shadow of
\n             doubt.  We note that this issue has been specifically
\n             and elaborately considered by a learned Single  Judge
\n             of  this Court (K.S.Radhakrishnan, J.)in the decision
\n             of Mathew v.  D.F.O, reported in 1997(1) KLT 61.   In@@
\n                CCCCCC     CCCCCC
\n             the  said  decision,  the learned Single Judge, after
\n             referring to the various provisions  of  the  Act  as
\n             also  the purposes for which the Act has been enacted
\n             and after  a  very  elaborate  consideration  of  the
\n             various issues involved, has specifically come to the
\n             conclusion  that for the purposes of Section 5 of the
\n             Act trees as explained in Explanation I  would  apply
\n             and  not the definition of `tree’ under Section 2(e),
\n             which would apply only for the purposes of Section 4.
\n             The said decision has dealt with every aspect of  the
\n             matter  and  we fully and respectfully approve of the
\n             said decision  without  any  reservation  whatsoever.
\n             Since  the  said decision which succinctly deals with
\n             every aspect of the subject and squarely  covers  the
\n             field,  we  do  not  want  to  elaborate  on the same
\n             either.\n<\/p>\n
             \tIn  the  above  circumstances,  we do not find any
\n             merit in the writ appeal and the same  is  dismissed,
\n             but without any order as to costs.\n<\/p>\n
             Tds\/\t\t\t\tSd\/-\n             \n.JN \n.SP 1\n             \t\t\t\t    Rajeev Gupta@@\n                 AAAAAAAAAAAAAAAA\n                                           (Chief Justice).@@\n<\/pre>\n
             AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA<\/p>\n
             \t\t\t\t\tSd\/-\n<\/p>\n
             \t\t\t             S.Siri Jagan@@
\n                   AAAAAAAAAAAAAAAAAAAAAA
\n                                              (Judge).@@
\n             AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA<\/p>\n
             \t[True copy]<\/p>\n
             \t\t\tP.S. to Judge.\n<\/p>\n
.PA <\/p>\n
((HDR 0<\/p>\n
))
\n.HE 2
\n.SP 2
\n.JN
\n             \t\t\t\tRajeev Gupta, C.J.\n<\/p>\n
             \t\t\t\t\t&
\n             \t\t\t\tS.Siri Jagan, J.\n<\/p>\n
             \t\t\t=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
\n             \t\t\t\tW.A.No. 2236 of 1998
\n             \t\t\t=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=<\/p>\n
             \t\t\t\tJ U D G M E N T@@
\n                 CCCCCCCCCCCCCCC
\n             \t\t\t\t  October, 2005.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court M.T.Joseph vs State Of Kerala on 6 October, 2005 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-73657","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nM.T.Joseph vs State Of Kerala on 6 October, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-t-joseph-vs-state-of-kerala-on-6-october-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.T.Joseph vs State Of Kerala on 6 October, 2005 - 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