Allowed

Kerala Plantation Corporation Employees v. Forest Range Officer, Kasaragod and Ors.

Kerala HC16 Jul 2010WP(C)/13697/2010

Case brief

AI extract

What is this about?

The High Court held that Government Orders requiring forest department permission for tree felling apply to Social Forestry lands but not to private plantation estates. The_petitioner_ was directed to be issued transport passes for timber.

What did the court decide?

Direction to respondents to issue transport passes for timber within two weeks.

Kerala Plantation Corporation Employees Vs Forest Range Officer, Kasaragod and Ors. — Kerala HC (2010) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR

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FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932

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WP(C).No. 13697 of 2010(J)

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-----------------------------------------

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PETITIONER(S):

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--------------------------

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KERALA PLANTATION CORPORATION EMPLOYEES UNION (CITU) REPRESENTED BY ITS MALABAR GROUP SECRETARY, (A.B.AJITH KUMAR) KASARGOD ESTATE, PCK, MOOLIYAR.P.O., KASARGOD DISTRICT.

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BY ADV. SRI.DEVAPRASANTH.P.J.

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RESPONDENT(S):

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---------------------------

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1. FOREST RANGE OFFICER, KASARAGOD.

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2. ASSISTANT FOREST CONSERVATOR, SOCIAL FORESTRY DIVISION, KASARAGOD, VIDYA NAGAR, UDAYAGIRI, KASARAGOD.

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3. STATE OF KERALA, REPRESENTED BY SECRETARY TO THE DEPARTMENT OF FOREST, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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4. PLANTATION CORPORATION OF KERALA, REPRESENTED BY ITS MANAGING DIRECTOR, MUTTAMBALAM.P.O., KOTTAYAM.

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R1 TO R3 BY SPL.GOVERNMENT PLEADER SRI. P.M.PAULOSE R4 ADVS. SRI.MATHEWS K.UTHUPPACHAN, SRI.TERRY V.JAMES, SRI.B.J.JOHN PRAKASH.

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 6/07/2010 ALONG WITH WPC NO. 17448 OF 2010 AND WPC NO. 19488 OF 2010, THE COURT ON 16/07/2010 DELIVERED THE FOLLOWING:

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Kss

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T.R. Ramachandran Nair, J.

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- - - - - - - - - - - - - - - - - - - - - - - -

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W.P.(C) Nos. 13697/2010-J, 17448/2010-E & 19488/2010-I

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- - - - -- - - - - - - - - - - - - - - - - - - - -

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Dated this the 16th day of July, 2010.

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JUDGMENT

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These three writ petitions concern a common issue and therefore, they are disposed of by a common judgment.

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The question raised is whether, for cutting and removing the miscellaneous trees in the properties owned by the Kerala Plantation Corporation, permission should be obtained from the Assistant Forest Conservator, Social Forestry Division of the Forest Department.

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W.P.(C) No.13697/2010 is filed by an employees union of the Kerala Plantation Corporation and the other two writ petitions are filed by the contractors who have been given the right to cut and remove the miscellaneous trees from the cashew plantations of the Plantation Corporation. They seek for a direction to issue necessary passes to transport the timber and trees which were permitted to be cut and removed by the Corporation.

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The Plantation Corporation of Kerala is a limited company and the

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company is having an estate known as 'Kasaragod Estate' which consists of

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wpc 13697, 17448 & 19488 of 2010 2

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2293.90 hectares of land. The land was transferred to the company by the Agricultural Department as per Ext.P1 Govt. Order produced in W.P.(C) No.13697/2010 on paying an amount of Rs.52,51,000/-. The Corporation was granted assignment and a pattayam under the Kerala Land Assignment Rules and they are paying land tax as assessed by the Revenue Department. Ext.P2 produced therein is the copy of the pattayam. Due to old age of the cashew trees, the Corporation initiated steps for replantation. Accordingly, an auction was conducted in respect of three blocks on 21.12.2009, 5.1.2010 and 28.1.2010. It is at that stage notices were issued by the Asst. Conservator of Forests, Social Forestry Division, Kasaragod, to the Corporation which is produced as Ext.P4 in the above writ petition, stating that previous permission is required to cut and remove trees owned by the Government and public sector undertakings. It was explained by the Corporation that the land is owned by the Plantation Corporation and it is not a land leased by the Government also. Ext.P6 is the said reply. Again, subsequent notices were followed and explanations were being given in the matter. In view of the stop memos issued, the union representing the workers, approached this Court contending that the delay in the matter will affect the employment of the workers itself.

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wpc 13697, 17448 & 19488 of 2010 3

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In the statement filed by the second respondent, the stand taken is that various Government Orders require prior permission from the Forest Department for cutting and removal of trees. The recent Govt. Order relied on in the statement is dated 10.2.2010. It is contended that going by the said Govt. Order, cutting and felling of trees grown on the lands at the disposal of the Government such as lands owned or occupied by public institutions under Government including government offices, educational institutions, medical institutions, research institutions, local self government institutions, public sector undertakings, quasi government institutions, statutory bodies and the like is restricted. The Plantation Corporation being a limited company owned by the Government, it will come within the purview of the above Govt. Order. Reliance is also placed on the earlier Govt. Orders issued in this regard.

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The Plantation Corporation has filed a statement contending interalia that the estate is fully owned by the Plantation corporation and the land is one assigned to the Corporation under the Kerala Land Assignment Rules. Specific conditions are there in the pattas and the trees which are scheduled in the pattas have not been proposed to be cut or removed. An amount of Rs.53.78 lakhs were paid as consideration to the Government and

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wpc 13697, 17448 & 19488 of 2010 4

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the land tax is also being paid and therefore the land does not belong to the Government. The entire area is to be cleared for replantation. It is submitted that permission from the Forest Department is required only in respect of the species of trees mentioned in the schedule of Ext.P2. It is also submitted that the Corporation is ready to preserve the trees mentioned in the Preservation of Forest tree schedule and is protecting teak and rose wood trees in the area. It is also pointed out that for the last three years the Forest Department had given sanction to the contractors for the removal of trees for re-planting purpose in the three divisions, viz. Mouwar, Chokkamula and Sarpamala.

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The true effect of the Govt. Orders issued in this regard is the contentious issue raised by the parties concerned. Shri George Thomas Mevada, learned Senior Counsel appearing for the petitioner in W.P.(C) No.19488/2010 and Shri Kodoth Sreedharan, learned counsel appearing for the petitioner in W.P.(C) No.17448/2010 contended that the Govt. Orders will not apply herein, because the land owned by the Plantation Corporation is not a land at the disposal of the Government. Learned Senior Counsel Shri George Thomas Mevada submitted that a reading of the Govt. Orders show that those orders were issued from time to time to

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wpc 13697, 17448 & 19488 of 2010 5

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prevent indiscriminatory felling of trees which are planted by the Government in the lands in various institutions including that of educational institutions, government offices and the like by execution of Social Forestry Project. Attention was invited to the various Govt. Orders in that regard. These contentions have been opposed by the learned Government Pleader, who contended that they will apply to the lands assigned to the Plantation Corporation. In the notices issued by the second respondent, the Govt. Orders dated 2.9.1986, 14.8.1991, 26.4.2001 and the recent one issued on 10.2.2010 have been relied upon. Those Govt. Orders have been produced as Exts.P9 to P12 in W.P.(C) No.19488/2010. Ext.P9 is the Govt. Order dated 2.9.1986. After noticing that for widening of roads, facilitating sports, etc. there are several cases of felling of trees on public lands, it was ordered that without getting the written consent of the Asst. Conservator of Forests, Social Forestry of the District concerned, no person/organisation/institution/departmental authority shall cut, uproot or burn or cause to be cut, uprooted or burnt any tree on public land. Ext.P10 is the circular dated 14.8.1991 issued by the Government wherein also the stipulations in Ext.P9 are reiterated. It is clear from the same also that the restriction was in respect of the trees which were planted in Government

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wpc 13697, 17448 & 19488 of 2010 6

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lands under the Social Forestry scheme. Ext.P11 expressly provides for guidelines for felling and removal of trees in the plantation raised by the Social Forestry Wing of the Government. It includes land along the sides of Highways, Railway lands and lands at the disposal of the Government. Ext.P12 is the recent order passed by the Government dated 10.2.2010. The said order also refers to the initial Govt. Order, Ext.P9 dated 2.9.1986. It contains various procedures to be followed for granting permission by the specified authorities therein. Mention is made about cutting of trees grown in the lands “at the disposal of the Government” such as lands owned by various public institutions including Government offices, educational institutions, medical institutions, research institutions, local self government institutions, public sector undertakings, quasi Government institutions, statutory bodies and the like.

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Therefore, obviously these orders relate to cutting and removal of trees which are grown in the lands at the disposal of the Government, as part of the Social Forestry Scheme. It is evident from Ext.P12 that such felling was being done on the basis of various developmental activities like construction of roads, buildings, etc., Government wanted to prevent indiscriminate felling of such trees. Herein, the question is whether the land

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wpc 13697, 17448 & 19488 of 2010 7

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owned by the Plantation Corporation can be termed as land at the disposal of the Government. The enactments under the Kerala Land Conservancy Act and the Land Assignment Act are therefore relevant, as the scope of the Government Orders have to be assessed in the light of the provisions of the said enactments also to understand what is meant by the expression “land at the disposal of the Government”.

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Section 3 of the Kerala Land Conservancy Act defines 'property of Government' . The properties described in sub-section (1) of Section 3 includes all public roads, streets, lanes and paths, bridges, ditches, dykes and fences on or beside the same, the bed of the sea and of harbours and creeks below high water mark, the beds and banks of rivers, streams, irrigation and drainage channels, canals, tanks, lakes, backwaters and water courses, and all standing and flowing water, and all lands wheresoever situated. Some of the items shown as (a) to (e) are excluded, and subsection (b) relates to property of persons registered in the revenue records as holders of lands in any way subject to the payment of land revenue to the Government. The Land Assignment Act, under which herein the Government assigned the property to the Plantation corporation, also gives guidance in the matter. A similar definition has been provided therein also.

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wpc 13697, 17448 & 19488 of 2010 8

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Under Section 2(b) holders of land in any way subject to the payment of land revenue to the Government, are saved from the general definition.

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Herein, the land was assigned to the Plantation Corporation under the Land Assignment Rules on payment of more than Rs.53 lakhs. Ext.P2 produced in W.P.(C) No.13697/2010 is the pattayam issued and they are bound to protect the schedule trees therein. They are also bound to protect the trees coming under the Kerala Preservation of Trees Act, which according to the learned counsel for the Plantation Corporation, have not been sold in auction. The land owned by the Corporation cannot therefore be termed as land at the disposal of the Government to attract the Government Orders Exts.P9 to P12 in W.P.(C) No.19488/2010. Mutation has been effected in favour of the Plantation Corporation and they are paying land revenue also. The Government Orders specifically refers to the trees grown under the Social Forestry Projects which are remaining in the lands of various institutions, schools, etc. They will not apply to the fact situation available here.

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Herein, one more aspect is evident. The Plantation Corporation is raising plantation in the lands owned by it. It is for raising the plantations, they are cutting and removing the miscellaneous trees. In that

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wpc 13697, 17448 & 19488 of 2010 9

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view of the matter also, it cannot be insisted that the plantation should be raised without cutting the existing trees. The entire area will have to be cleared by them for the purpose of raising the plantation.

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In that view of the matter, the insistence that prior permission ought to have been obtained for cutting the trees under various, viz. Exts.P9 to P12 produced in W.P.(C) No.19488/2010, cannot be accepted.

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Already, the trees have been cut down as per the tenders approved by the Plantation Corporation, by the petitioners in W.P.(C) No.19488/2010. The items of trees cut down, are not covered by the schedule of the pattayam or under the Kerala Preservation of Trees Act.

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Therefore, the writ petitions are allowed. There will be a direction to the concerned respondents in W.P.(C) Nos.17448/2010 and 19488/2010 to issue passes for transport of the timber from the estates of the Plantation Corporation on usual terms, which will be issued within a period of two weeks from the date of production of a copy of this judgment. No costs.

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(T.R. Ramachandran Nair, Judge.)

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kav/

Kerala Plantation Corporation Employees v. Forest Range Officer, Kasaragod and Ors.

Case brief

What is this about?

What did the court decide?

Kerala Plantation Corporation Employees v. Forest Range Officer, Kasaragod and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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