Partly allowed

Jose v. State of Kerala

Kerala HC15 Nov 2016WP(C)/30773/2014

Case brief

AI extract

What is this about?

The petitioners challenged a notification under the Kerala Preservation of Trees Act, 1986 barring tree-cutting on their land and a State direction requiring prior Central Government approval for non-forestry use. The court upheld the notification but quashed the direction, holding that cultivation carried on before the Forest (Conservation) Act, 1980 needed no fresh Central sanction.

What did the court decide?

Direction requiring prior Central Government permission under Section 2 of the Forest (Conservation) Act, 1980 for personal cultivation quashed; right to continue cultivation existing before that Act

Jose Vs State of Kerala — Environment and Pollution | Kerala HC (2016)

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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 ALEXANDER THOMAS

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TUESDAY, THE 15TH DAY OF NOVEMBER 2016/24TH KARTHIKA, 1938

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WP(C).No. 30773 of 2014 (V)

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PETITIONER(S):

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1. JOSE, AGED 60, S/O. SEBASTIAN, KAIPALAM HOUSE, SREENARAYANA NAGAR, COIMBATORE ROAD, PALAKKAD - 1.

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2. K.S. SHERLY, AGED 54,

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D/O. SEBASTIAN, KAIPALAM HOUSE, SREENARAYANA NAGAR, COIMBATORE ROAD, PALAKKAD - 1.

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3. DAISY BENNY, AGED 49,

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W/O.BENNY, KAIPALAM HOUSE, EDAYAR STREET, PALAKKAD - 3.

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4. BINIL K.BENNY, AGED 30, S/O.BENNY, KAIPALAM HOUSE, EDAYAR STREET, PALAKKAD - 3.

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5. DAYA, AGED 23, D/O.BENNY, KAIPALAM HOUSE, EDAYAR STREET, PALAKKAD - 3. (PETITIONERS 1 TO 5 ARE BEING REPRESENTED BY THE IST PETITIONER AS THEIR POWER OF ATTORNEY HOLDER).

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BY ADVS.SRI.K.S.MADHUSOODANAN, SRI.M.M.VINOD KUMAR, SRI.P.K.RAKESH KUMAR, SRI.K.S.MIZVER.

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RESPONDENT(S):

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1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001.

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WP(C).No. 30773 of 2014 (V)

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2. THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF FOREST AND WILD LIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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3. THE CUSTODIAN AND ECOLOGICALLY FRAGILE LAND AND ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FOREST (DEVELOPMENT), THIRUVANANTHAPURAM-695 014.

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4. THE ADDITIONAL PRINCIPAL CHIEF CONSERVATOR OF FOREST (NR), KOZHIKODE.

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BY SPL. GOVT. PLEADER SRI.SANDESH RAJA.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 30773 of 2014 (V)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXT.P-1:	TRUE COPY OF THE LEGAL HEIRS CERTIFICATE ISSUED BY THE TAHSILDAR,TALUK OFFICE, PALAKKAD, DATED 08.03.2012
EXT.P-2:	TRUE COPY OF THE POWER OF ATTORNEY DATED 31.10.2013 EXECUTED BY THE 2ND AND 3RD PETITIONERS
EXT.P-3:	TRUE COPY OF THE POWER OF ATTORNEY DATED 07.12.2013 EXECUTED BY THE 4TH AND 5TH PETITIONERS
EXT.P-4:	TRUE COPY OF THE JUDGEMENT DATED 19.02.1998 IN MFA NO.814/1988 OF THIS HON'BLE COURT.
EXT.P-5:	TRUE COPY OF THE PROCEEDINGS DATED 08.04.2010 OF THE 3RD RESPONDENT.
EXT.P-6:	TRUE COPY OF THE NOTIFICATION DATED 14.06.2011 ISSUED BY THE 3RD RESPONDENT
EXT.P-7:	TRUE COPY OF THE ORDER DATED 24.04.2013 ISSUED BY THE 2ND RESPONDENT
EXT.P-8:	TRUE COPY OF THE PROCEEDINGS DATED 18.08.2014 OF THE ADDITIONAL TAHSILDAR, PALAKKAD.
EXT.P-9:	TRUE COPY OF THE LAND TAX RECEIPT DATED 22.08.2014 ISSUED BY THE VILLAGE OFFICER, MALAMPUZHA II.
EXT.P-10:	TRUE COPY OF THE POSSESSION CERTIFICATE DATED 26.08.2014 ISSUED BY THE VILLAGE OFFICER, MALAMPUZHA II.
EXT.P-11:	TRUE COPY OF THE JUDGEMENT DATED 18.06.2014 IN WPC NO.12998/2014 OF THIS HON'BLE COURT.
EXT.P-12	TRUE COPY OF THE NOTIFICATION BEARING NO.G.O.(P) 41/2013/F&WLD DATED 11/04/2013.
EXT.P-13	TRUE COPY OF THE ORDER DATED 04/04/2016 BEARING NO.A4-761/16 OF SECRETARY, MALAMPUZHA GRAMA PANCHAYATH.
EXT.P14-	TRUE COPY OF THE ORDER IN CMP.2914/1993 IN MFA. NO.61/86 DATED 16/09/1993 OF THE DIVISION BENCH OF THIS HON'BLE COURT.
EXT.P15- RESPONDE	TRUE COPY OF THE REPORT DATED 22/12/2005 PREPARED BY FOREST RANGE OFFICER, VALAYAR. NT'S EXHIBITS :- NIL.

//TRUE COPY//

P.S. TO JUDGE

rs.

ALEXANDER THOMAS, J.

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W.P.(C).No. 30773/2014

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==================

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Dated this the 15^th day of November, 2016 J U D G M E N T

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The petitioners herein are having absolute ownership and possession of the subject property involved in this case, which comes to 1.2 acres in Sy.No.25Pt, 1A1Pt in Malampuzha II Village, Palakkad Revenue District, which forms part of an extent of 1.62 acres purchased by them from the previous owners, which in turn forms part of a larger extent of 112.99 acres. The said larger extent of 112.99 acres was the subject matter of Original Application, O.A.No.471/1976 before the Forest Tribunal, wherein adjudication proceedings were earlier pending under the provisions of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (referred for short as “ the Kerala Private Forest Act ”). The Forest Tribunal, by judgment dated 11.9.1978, had allowed the prayer in that O.A and had given necessary adjudicatory orders therein excluding 68.5 acres of land from the purview of Sec.3(1) vesting by taking recourse to the provisions of Sec.3(3) of the Kerala Private Forest Act. The said order was rendered by the Forest Tribunal on the ground that previous owners could prove that they had a clear and manifest intention for cultivation in the said land as on the appointed day

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W.P.(C)30773/14 - : 2 :-

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(10.5.1971) and the said land was obtained through a valid registered document of title executed before the appointed day and the said land had also not exceeded the extent of ceiling limit as provided in Sec.82 of the Kerala Land Reforms Act, 1963. In short, the Tribunal found that the previous owners could prove that they have fulfilled all the necessary conditions laid down in Sec.3(3) of the Act and that the said land was thus taken out of the purview of the vesting process enshrined in Sec.3(1) of the Act. It appears that the said excluded portion of the land was restored to the owners pursuant to the judgment of the Forest Tribunal allowing the O.A. Petitioners 1 & 2 and the deceased husband of the 3^rd petitioner had purchased 1.62 acres of land from out of the above said excluded land from the previous owners as per sale deed Nos.2889/ 1984, 2890/1984 and 2891/1984. The State had not preferred any statutory appeal as against such verdict of the Forest Tribunal and later by virtue of the amended provisions contained in Sec.8B of the Act, the State had preferred a Review Petition as R.P.No.626/1997 which was allowed by the Forest Tribunal thereby dismissing the O.A. The said judgment of the Forest Tribunal allowing the Review Petition and thereby dismissing the O.A.No.471/1976 was challenged by the said previous owners concerned by instituting Miscellaneous First Appeals, M.F.A. Nos.654 and 814 of 1998 before this Court. A Division Bench of this Court found that the judgment of the Forest Tribunal allowing the Review

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W.P.(C)30773/14 - : 3 :-

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Petition and thereby dismissing the O.A was clearly wrong and that the State could not properly establish that they have made a case of statutory review as enshrined in Sec.8B of the Act and further that the materials on record clearly show that the owners had a clear and manifest intention to cultivate the land in question as envisaged in Sec.3(3) of the Act. Thus, the Division Bench of this Court as per Ext.P-4 judgment rendered on 19.2.1998 had allowed the above said M.F.As and held that owners are entitled for the benefit of exclusion from the vesting process as envisaged in Sec.3(3) of the Act. The State had preferred S.L.P(C). Nos.7393 & 7384 of 1998 before the Apex Court to challenge Ext.P-4 judgment and the said S.L.Ps were also dismissed by the Apex Court thereby affirming Ext.P-4 judgment.

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Later, the Forest authorities concerned had taken recourse to the provisions contained in the Kerala Forest (Vesting & Management of Ecologically Fragile Lands) Act, (hereinafter referred for short as ' the EFL Act ', which had deemed to have come into force on 2.6.2000) and had issued notification of the Principal Chief Conservator of Forests and Custodian dated 12.7.2001 published in the Kerala Gazette No.36 dated 11.9.2001 as per the provisions contained in Sec.3(1) of the EFL Act, whereby it was ordered that 8.9 hectares of land, which is inclusive of 1.62 acres of land owned by the present petitioners (covered by the above said O.A) will stand transferred and vested to the State

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Government as an ecologically fragile land as envisaged in Sec.3(1) of the EFL Act. The petitioners had thereupon filed necessary application under Sec.19(3) of the EFL Act claiming that the said land in question does not satisfy the definition of “ forest ” and “ ecologically fragile lands ” as defined in Secs.2(c) and 2(b) of the EFL Act and that the notification vesting the abovesaid land as a ecologically fragile land under Sec.3(1) of the Act is clearly ultra vires and illegal and the said notification may be rescinded and to restore the land to the petitioners as they are lawful owners. The competent authorities of the Forest Department conducted exhaustive and detailed enquiries at various levels and had come to the considered conclusion that more than 60% of the 1.2 acres of land (which form part of the above said 1.62 acres of land) owned by the petitioners are under cultivation and hardly 40% thereof can be described as natural growth and that majority of the said natural growth appears to have taken place after the vesting of the land under the EFL Act from 2001 onwards. After exhaustive analysis of the entire materials on record collected through various enquiries conducted at various levels by the Forest Officers concerned, the custodian of ecologically fragile lands found that 1.2 acres of land belonging to the petitioners do not satisfy the definition of “ forest ” as per Sec.2(c) as well as the definition of “ ecologically fragile lands ” as per Sec.2(b) of the EFL Act and that the said 1.2 acres of land is to be excluded from vesting under Sec.3(1) of the EFL Act and it was also found

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W.P.(C)30773/14 - : 5 :-

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therein that 0.42 acres of land forming part of 1.62 acres of land of the petitioners is liable for vesting as ecologically fragile land as per Sec.3(1) of the Act. It is pointed out that writ proceedings had been initiated by the petitioners to impugn the correctness of the said 0.42 acres of land and that case is not in any manner concerned with the present case as the dispute and the issues in this case are relatable about the 1.62 acres of land of the petitioners.

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Pursuant to Ext.P-5, the authorities concerned had issued Ext.P-6 notification dated 14.6.2011 formally excluding the said 1.2 acres of land from the purview of Sec.3(4) of the EFL Act. The mutation was effected in favour of the petitioners in respect of the said 1.2 acres of land as per Ext.P-8 proceedings dated 18.8.2014 of the Addl. Tahsildar, Palakkad, and the Revenue Land Tax was accepted by the Revenue authorities as per Ext.P-9 and possession certificate in respect of the said 1.2 acres of property was also issued as per Ext.P-10 by the competent Revenue authority concerned. Thereafter, the respondent State Government had issued the impugned Ext.P-12 statutory notification as per SRO 316/2013 [arising out of G.O(P). 14/2013/F&WLD dated 11.4.2013] published in Gazette dated 17.4.2013, by taking recourse to the provisions contained in Sec.5(1) of the Kerala Preservation of Trees Act, 1986 (hereinafter referred to as “the Trees Act ” for short), and thereby directing that no trees standing in the area specified in the

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W.P.(C)30773/14 - : 6 :-

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schedule attached to that notification, shall be cut, uprooted, burned 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 wind-fallen, etc. The schedule to Ext.P-12 notification published on 17.4.2013 relates to the abovesaid 1.2 acres of land of the petitioners, which is the subject matter of Exts.P-5 and P-6 notification and which also form a part of the properties covered by the abovesaid O.A. as well as Ext.P-4 MFA judgment.

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Later, the Government has also issued the impugned Ext.P-7 Government letter No.486/E2/2013/F&WLD dated 24.4.2013, ordering that the abovesaid 1.2 acres of land of the petitioners is a “ private forest ” as per the Kerala Private Forests Act, 1971, ever after the exclusion from the process of vesting as per Sec.3(3) and that, therefore, it would also satisfy the definition of “ forest ” as defined in the Forest (Conservation) Act, 1980 (Central Act No.69 of 1980) and that any diversion of such land for non-forestry purpose would require the prior permission of the Central Government irrespective of the ownership of the land in question, as envisaged in Sec.2 of the Central Act.

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The petitioners had preferred an application for building permit for constructing a residential abode in the said 1.2 acres of property on the ground that they require such a residential facility as an ancillary and incidental purpose for carrying out their main purpose of

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W.P.(C)30773/14 - : 7 :-

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personal cultivation in the said 1.2 acres of property and the Malampuzha Grama Panchayat authorities had referred the matter for the views of the District Forest Officer concerned and it appears that an intimation was given by the DFO to the Panchayat authorities that the said 1.2 acres of property cannot be used for any non-forestry purposes, except with the prior permission of the Central Government. Thereupon, the Panchayat authorities had issued Ext.P-13 letter dated 4.4.2016 addressed to the DFO, calling for clarification as to whether the Panchayat could consider the grant of building permit to the petitioners. It appears from the pleadings on both sides that the matter referred to in Ext.P-13 has not been finally decided and that the said issue is also pending with the authorities concerned.

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It is in the light of these facts and circumstances that the petitioners have instituted the instant Writ Petition (Civil) to mainly challenge the impugned Ext.P-12 notification dated 11.4.2013 issued by the State Government under Sec.5(1) of the Kerala Preservation of Trees Act, 1986 and the impugned Ext.P-7 proceedings dated 24.4.2013 issued by the State Government. The prayers raised in the above W.P.(C). are as follows:

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“i. Call for the records leading to passing Ext.P-7 order from the 2^nd respondent and quash that part of the order of restriction set forth in it I.e “any diversion of such forest land for non forestry purpose will require permission of Central Government, irrespective of the ownership of the land in question. Further such land will be managed under the provision of the working plan/working schemes approved by the Government of India;

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W.P.(C)30773/14 - : 8 :-

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ii. Declaring that the petitioners are eligible to use 1.20 acres of land comprised in Sy.No.25 P.t., IA1 Pt.in Malampuzha II Village covered by their title deeds Nos.2889/1984, 2890/1984, 2891/ 1984 and involved in Exts.P-4, P-5 and P-6 for any purpose and the restriction set forth in Ext.P-7 is not applicable;

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iii. Such other reliefs as this Hon'ble Court may deem fit and proper.

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iv. Call for Ext.P-12 from 2^nd respondent and Issue Writ of Certiorari to quash the same;

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v. Award cost to the petitioners.”

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The respondents had initially filed a statement dated 13.12.2014 in the matter and later a counter affidavit dated 21.10.2016 was filed on behalf of 1^st and 2^nd respondents, to the pleadings in the amended Writ Petition. The main contentions raised by the respondents in their pleadings and arguments are that the benefit of the orders passed under Sec.3(3) of the Forest Act will only lead to a situation of exclusion from the vesting process as mandated in Sec.3(1) and that, in spite of such exclusion under Sec. 3(3) or 3(2) as the case may be, such a land would continue to be a “ private forest ” as conceived in the said Act, notwithstanding the grant of the benefit of exclusion of that extent of land from the burden and liability of the vesting process as flowing from Sec.3(1) of the Act. Therefore, it is contended that the land in question would certainly fulfill the definition of “ private forest ” as defined in Explanation I appended to Sec.5 of the Trees Act and therefore, the Government is properly empowered to issue a prohibitory notification under Sec.5(1) in respect of cutting of any trees in that land and the

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W.P.(C)30773/14 - : 9 :-

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effect of the said prohibition contained in the Sec. 5(1) notification will relate, not only to the enumerated trees as conceived in Sec.2(e) of the Trees Act, but also to “any tree” as conceived in Explanation I of Sec.5 of the Trees Act. On this basis, it is contended that the impugned Ext.P-12 notification issued under Sec.5(1) of the Act is fully in order and is not liable for any interference. Further, it is also contended that, as the land in question continues to be a “ private forest ” as conceived in the Private Forest Act, 1971, in spite of its exclusion from the vesting process by virtue of the orders passed under Sec.3(3) of the Act and therefore, it would fulfill the broad and large definition of “forest” as conceived in the Forest (Conservation) Act [Central Act 69 of 1980] and that therefore, even if the land has been excluded under Sec.3(3) of the Private Forest Act or even if the said land does not come within the EFL vesting as per Sec. 3(1) of the EFL Act, the land continues to be a “ private forest ” and therefore, the said land cannot be diverted for any non-forestry purposes, except with the prior permission of the Central Government as mandated in Sec.2 of the abovesaid Central Act. On this basis, it is contended that the impugned Ext.P-7 proceedings are also not liable for interference.

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Heard Sri.K.S.Madhusoodanan, learned counsel appearing for the writ petitioner and Sri.K.Sandesh Raja, learned Special Government Pleader (Forest) appearing for the respondents.

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W.P.(C)30773/14 - : 10 :-

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Two broad points arise for consideration in this case, viz.,

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Point No.(i) Whether the impugned Ext.P-12 notification dated 17.4.2013 issued under Sec.5(1) of the Trees Act, is illegal and ultra vires and whether it is liable for judicial interdiction ?

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Point No.(ii) Whether the impugned Ext.P-7 proceedings issued by the respondent State Government ordering that any diversion of the petitioners' land for any non-forestry purposes would require the prior sanction as per Sec.2 of the Central Act, is illegal and ultra vires and whether it requires any judicial interference ?

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Incidentally to the second issue, the matters concerning the request of the petitioners, as reflected in Ext.P-13, for constructing a residential abode in the said land, would also arise for consideration.

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Point No.(i) Whether the impugned Ext.P-12 notification dated 17.4.2013 issued under Sec.5(1) of the Trees Act, is illegal and ultra vires and whether it is liable for judicial interdiction ?

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Some of the indisputable aspects in this matter are as follows:- That the previous owners of the abovesaid land of the petitioners, could secure necessary orders from this Court as per Ext.P-4, finding that they are entitled for the benefit of exclusion of the said land from the vesting process, in terms of Sec.3(3) of the Act. This has been on the basis that it was clearly found that the previous owners had obtained valid title to the property in question on the basis of a valid

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W.P.(C)30773/14 - : 11 :-

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registered document executed prior to the appointed day (10.5.1971) and that the said land was within the ceiling limits as per the Kerala Land Reforms Act and further that the said land owners had a clear and manifest intention to effect cultivation in the said land as envisaged in Sec.3(3) of the Act and that, therefore, the said land is entitled to be excluded from the process of vesting mandated in Sec.3(1) of the Private Forest Vesting Act. In order to appreciate the controversy as to whether the said land would continue to be a “ private forest ” as understood in the Private Forest Act, 1971, as well as, as per Explanation I of Sec.5 of the Trees Act, it would be pertinent to refer to some of the provisions of the Private Forest Act as well as the Trees Act.

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The State Legislature had enacted “ the Kerala Private Forests (Vesting & Assignment) Act, 1971 ”, with the objective to provide for the vesting in the Government of private forests in the State of Kerala and for assignment thereof to agriculturists and agricultural labourers for cultivation and Preamble to the said Act states that private forests in the State of Kerala are agricultural lands and that the Government wanted to utilise such agricultural lands so as to increase agricultural production and promote welfare of the agricultural population in the State. Section 1 of the Act mandated that subject to the provisions contained in sub sections (2) and (3) of Sec.3, the ownership and possession of all private forests in the State of Kerala, shall by virtue of that Act, stand transferred

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W.P.(C)30773/14 - : 12 :-

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to and vested in the Government free from all encumbrances and the right, title and interest of the owner or any other person in the private forest shall stand extinguished, on and with effect from the appointed day (10.5.1971).

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Sec.10 of the said Act envisages assignment of private forests to agriculturists, agricultural labourers, members of Scheduled Castes and Scheduled Tribes, who intend to take up agriculture as means of their livelihood, unemployed young persons belonging to families of agriculturists and agricultural labourers, labourers belonging to families of agriculturists and agricultural labourers, etc. The Constitutional validity of the said Act was upheld by the Apex Court in the ruling in State of Kerala v. Gwalior Rayon Silk Manufacturing (WVG) Co. Ltd. reported in 1973 KLT 896 (SC), on the clear finding that the said Act is entitled to get the Constitutional protection under Art.31A of the Constitution of India, which is meant for the advancement of the agrarian relations.

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Before adverting to the relevant provisions in the Private Forests Act, 1971, it may be equally pertinent to refer to the provisions contained in Sec.1 of the Madras Preservation of Private Forests Act, 1949, which reads as follows:

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"Sec.1: Short title, application, commencement and duration (1) This Act may be called the Madras Preservation of Private of Forests Act, 1949.

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(2) It applies-

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(i) to private forests in the districts of Malabar and South Kanara having a contiguous area exceeding 100 acres

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Explanation.- Nothing in this clause shall be deemed to apply to any land which was brought under fugitive or other cultivation prior to the 14^th December, 1949 by an owner or any person claiming under him;

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(ii) to forests situated in estates as defined in the Madras Estates Land Act, 1908 (Madras Act I of 1908) in the Malabar District.

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(iii) to private forests situated in other areas in the Malabar District and having a contiguous area exceeding 100 acres which may be declared by the State Government to be forests for the purposes of this Act by notification in the Kerala Government Gazette,

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but does not apply to reserved forests constituted under the Madras Forest Act, 1882 (Madras Act V of 1882) and lands at the disposal of the Government as defined in that Act.

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Explanation.- A private forest exceeding 100 acres in extent shall not cease to be such by reason only of the fact that, in a portion thereof, trees or shrubs are felled with or without the permission of the District Collector, or lands are cultivated, or rocks, roads, tanks, rivers or the like exist; nor shall the area of such forest cease to be contiguous by reason only of the existence of all or any of the aforesaid circumstances.

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(3) It shall come into force at once and shall remain in force up to and inclusive of the 31^st December, 1967.

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(4) Upon the expiry of this Act, the provisions of Section 8 of the Madras General Clauses Act, 1891 (Madras Act I of 1891) shall apply as if this Act had then been repealed by a Madras Act.”

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Sec. 2(f) of the Private Forest Act defines “private forest” as follows:

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“2.Definitions.- In this Act, unless the context otherwise requires.-

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xx xxx xxx

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“Sec.2(f) “ private forest ” means--

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(1) in relation to the Malabar District referred to in sub-section (2) of S.5 of the State Reorganisation Act, 1956 (Central Act 37 of 1956)--

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(i) any land which the Madras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding--

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(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964).

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(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.

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Explanation.-- Lands used for the construction of office buildings, godowns, factories, quarters for workmen, hospitals, schools and playgrounds shall be deemed to be lands used purposes ancillary to the cultivation of such crops;

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(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and

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(D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of such buildings;

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(ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did not apply, including waste lands which are enclaves within wooded areas.

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(2) in relation to the remaining areas in the State of Kerala any forest not owned by the Government including waste lands which are enclaves within wooded areas.

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Explanation.-- For the purpose of this clause, a land shall be deemed to be waste land notwithstanding the existence thereon of scattered trees or shrubs;”

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Sec. 3 reads as follows:

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“Sec.3. Private forests vest in Government.-- (1) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections

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(2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the State of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.

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(2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto.

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Explanation.-- For the purposes of this sub-section, “cultivation” includes cultivation of trees or plants of any species.

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(3) Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling area applicable to him under S.82 of the said Act.

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(4) Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for the purposes of sub-section (2) or sub-section (3) be deemed to be lands to which Chapter III of the said Act is applicable and for the purposes of calculating the ceiling limit applicable to an owner, private forests shall be deemed to be “other dry lands” specified in Schedule II to the said Act.”

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Sec. 2(e) of the Preservation of Trees Act, defines “tree” as follows:

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“Sec.2.Definitions.- In this Act, unless the context otherwise requires.-

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xx xxx xxx

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“2(e) “ tree ” means any of the following species of trees, namely:--

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Sandalwood (Santalum album), Teak (Tectona grandis), Rosewood (Dalbergia latifolia), Irul (Xylia Xylocarpa), Thempavu (Terminalia tomantosa), Kampakam (Hopea parviflora), Chempakam (Michelia Chempaca) Chadachi (Grewia tilliaefolia), Chandana vempu (Cedrela toona), Cheeni (Tetrameles nudiflora).”

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Sec. 4 of the Trees Act provides for restriction of cutting of trees

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and the said provision reads as follows:

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“Sec4. Restriction regarding cutting, etc., of trees.-- (1) No person shall, without the previous permission in writing of the authorised officer cut, uproot or burn, or cause to be cut, uprooted or burnt any tree.

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(2) The permission under sub-section (1) shall not be refused

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if--

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(a) the tree constitutes a danger to life or property; or

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(b) the tree is dead, diseased or windfallen:

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Provided that where permission to cut a tree is granted on the ground specified in clause (a) or clause (b), the authorised officer shall impose as a condition for the grant of such permission the effective regeneration of an equal number of the same or other suitable species of trees; or

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(c) such cutting is to enable the owner of the land in which the tree stands to use the area cleared or the timber cut for the construction of a building for his own use.

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(3) No person shall cut or otherwise damage, or cause to be cut or otherwise damaged, the branch of any tree:

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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.

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(4) No person shall, without the previous permission in writing of the authorised officer, destroy any plant or any tree or do any act which diminishes the value of any such plant.

¶131

(5) Nothing contained in sub-section (1) or sub-section (2) or sub-section (3) or sub-section (4) shall apply in respect of any tree or plant in the compound of any residential building:

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(6) Notwithstanding anything contained in this section or in any judgment, decree or order of any Court, the owner of any land shall have the right to cut or cause to be cut any tree, other than a tree as defined in clause (e) of S.2, standing on such land, without obtaining a permission under this section.

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Provided that where such compound exceeds one hectare in extent, the provisions of this sub-section shall apply only in respect of an extent of one hectare immediately surrounding the residential building.”

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Sec.5 of the Trees Act reads as follows:

¶136

“Sec.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, Government 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--

¶137

(a) the tree constitutes a danger to life or property; or (b) the tree is dead, diseased or windfallen:

¶138

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.

¶139

(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.

¶140

Explanation I.-- For the purposes of this section, the term “ tree” shall include any species of tree.

¶141

Explanation II.-- For the purposes of sub-section (1), the expression “ private forest” means any land which immediately before the 10^th day of May, 1971, was a private forest as defined in the Kerala Private Forests (Vesting and Assignment) Act, 1971.”

¶142

Sec. 8 of the Private Forest Act, reads as follows:

¶143

“Sec.8. Settlement of disputes.- 1) Where any dispute arises as to whether-

¶144

(a) any land is a private forest or not; or

¶145

(b) any private forest or portion thereof has vested in the Government or not,

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the person who claims that the land is not a private forest or that the private forest has not vested in the Government, may, within such period as may be prescribed, apply to the Tribunal for decision of the dispute.

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(2) Any application under sub-section (1) shall be in such form as may be prescribed.

¶149

(3) If the Tribunal decides that any land is not a private forest or that a private forest or portion thereof has not vested in the Government and-

¶150

(a) no appeal has been preferred against the decision of the Tribunal within the period specified therefor; or

¶151

(b) such appeal having been preferred has been dismissed by the High Court, the custodian shall, as soon as may be after the expiry of the period referred to in clause (a) or, as the case may be, after the date of the order of the High Court dismissing the appeal, restore possession of such land or private forest or portion, as the case may be, to the person in possession thereof immediately before the appointed day.”

¶152

It is not in dispute that the lands in question are situated

¶153

within the erstwhile Malabar District. The second Explanation appended to Sec.2 of the Madras Preservation of Trees Act clearly provides that a private forest exceeding 100 acres in extent shall not cease to be such by reason only of the fact that, in a portion thereof, trees or shrubs are felled with or without the permission of the Collector, or lands are cultivated, etc. The said Madras Act had come into force on 14.12.1949 and was to be in force upto and inclusive of 31.12.1967. The Private Forest Act, 1971 was enacted by the Kerala State Legislature with effect from 10.5.1971, which is the appointed date for the purpose of the said Act. Sec. 2(f)(1)(i) which deals with a definition of “forest” has an inclusive clause as in

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sub clause (i) of Sec. 2(f)(1) and it also has exclusionary clauses as in sub clauses (A), (B), (C) and (D), appended to Sec.2(f)(1)(i). The inclusive part of Sec. 2(f)(1) makes it clear that private forests in Malabar district will include any land to which the abovesaid Madras Preservation of Private Forests Act, 1949, had applied immediately before the appointed day, but specifically excluding therefrom, the four components conceived in sub clauses (A), (B), (C) and (D) thereof. Sub clause (ii) of Sec.2(f)(1) will take into within its fold as private forest, any forest not owned by the Government, to which the Madras Act, did not apply, including waste lands which are enclaves within wooded areas. Sec.2(f)(2) would take within its fold as private forest in relation to remaining areas in the State of Kerala, any forest not owned by the Government, including waste lands which are enclaves within wooded areas, etc. The 4 components of

¶156

exclusion under Sec.2(f)(1)(i) of the Private Forest Act are as follows:

¶157

“(A) lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963 (1 of 1964);

¶158

(B) lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for any purpose ancillary to the cultivation of such crops or for the preparation of the same for the market.

¶159

(C) lands which are principally cultivated with cashew or other fruit bearing trees or are principally cultivated with any other agricultural crop and

¶160

(D) sites of buildings and lands appurtenant to and necessary for the convenient enjoyment or use of, such buildings;

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¶162

Therefore, in relation to the erstwhile Malabar District, if the land in question even if it had satisfied the definition of “private forest” as conceived in the Madras Act, 1949, it happens to fall within any one of the four exclusionary clauses contained in (A), (B), (C) or (D) of Sec. 2(f)(1)(i), then such land will stand totally excluded from the purview of the very definition of private forest as contemplated in the Private Forests Act, 1971, notwithstanding the aspect that it might have otherwise fulfilled the definition of “private forest” , as conceived in the Madras Act, 1949. If the land in question happened to fall within any such exclusionary clauses in (A), (B), (C), (D) mentioned above, then the said land would thus be totally outside the purview of the operation of the very Act itself and therefore the land which satisfies any one of the four exclusionary clauses, would also remain totally outside the purview of Sec.3 of the Act, as the said land will not even satisfy the definition of “private forest” as per the said Act.

¶163

Whereas even if the land owners do not put forward a case that their land will come within any one of the 4 exclusionary components of sub clauses (A), (B), (C), (D) of Sec. 2(f)(1)(i), still it would be open to such an applicant to plead and prove that the land

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¶165

in question will fulfill the conditions laid down either in sub section (2) of Sec.3 or that of sub section (3) of Sec.3, in which case, the land would remain outside the purview of vesting as mandated in Sec. 3(1) of the Act. But in such a situation, the land would continue to be a private forest as per the Act, even though it stands outside the purview of the liability of vesting in terms of Sec.3(1). There could be a few cases where on facts, a land might fulfill not only the conditions in Sec.3(2) or 3(3) as the case may be, but also that it may fall within anyone of the exclusionary clauses as in sub clauses (B) or (C) of Sec.2(f)(1)(i). If at all a land owner has any such case that his case would come within the purview of both those provisions as mentioned above, then it is for that land owner to make out such a case by approaching the Forest Tribunal under Sec. 8 of the Act. In such a case, it is for him to plead and prove that the land would satisfy anyone of the exclusionary clauses of Sec. 2(f)(1) (i) and such a case may be put forward under Sec. 8(1) of the Act and it is for the Tribunal to make necessary adjudication in that regard and if the applicant is successful to prosecute such a claim, the said land would remain totally outside the purview of the very definition of Sec.2(f) of the Act, in which case, there is no question of invoking

¶166

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any of the provisions of the Act including Sec.3. An alternative plea may also then put forward by the applicant that such a land, even if it does not fulfill exclusionary clauses of Sec. 2(f)(1)(i), that the same would certainly fulfill the conditions in Sec. 3(2) or Sec.3(3) and such an alternative plea may be put forward by taking recourse to the provisions contained in Sec. 8(1)(b) and get necessary reliefs. This case is not very much concerned with those aspects as the very

¶168

plea put forward by the previous owner of the land in question was that they are entitled only for the benefit of Sec.3(3) of the Act inasmuch as they had a clear and manifest intention to cultivate in the land, for which they had obtained valid title through registered document executed prior to the appointed day (10.5.1971) and that the said extent of land would come within the ceiling limit of the Kerala Land Reforms Act, etc. Therefore in the instant case the previous owner did not have a case that there was actual cultivation in the land in question so as to avail the benefit of Sec. 3(2) of the Act. A reading of Ext.P-4 judgment passed by the Division Bench of

¶169

this Court in the Miscellaneous First Appeal (MFA) would clearly reveal that the Division Bench had granted the benefit only under Sec. 3(3) of the Act. Sec.3(2) as well as Sec.3(3) of the Act clearly

¶170

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¶171

says that nothing in Sec.3(1) shall apply in respect of so much extent of private forest held by the owner in respect of the land in question to fulfill the necessary conditions laid down in those respective provisions and therefore a mere reading of Sec.3(2) as well as Sec.3(3) of the Act would make it clear that notwithstanding the exclusion of the said land from the purview of Sec. 3(1) vesting,

¶172

the land would technically remain as “private forest” , as conceived in the Private Forests Act or otherwise the land owner should be able to successfully prosecute their claim under Sec. 8(1) of the Act that the land in question falls within anyone of the exclusionary clauses conceived in Sec.2(f)(1)(i) of the Act, so as to take the said land totally outside the purview of the very definition of private forest as contemplated in the Act, etc.

¶173

A Division Bench of this Court in the case Joseph v. State of Kerala reported in 2005(4) KLT 504, has held that in similar situation the very fact that the exclusion from the vesting of the property in question was granted to the land owners, under Sec.3(3) of the Kerala Private Forests Act, would go to show that the land in question is a private forest and that the exclusion of the property from the purview of Sec.3(1) vesting is for the purpose of cultivating in

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the said land. Moreover, it was held therein that the Preservation of Trees Act was enacted in the year 1986, which is an enactment subsequent to the Kerala Private Forest Vesting Act, 1971 and therefore the non-obstantive clause contained in Sec. 5 of the Trees Act, 1986, will have overriding effect over any of the provisions contained in the Kerala Private Forests Act, 1971. On this basis, the Division Bench held that a land which has got the benefit of exclusion from Sec. 3(1) vesting by virtue of the order passed under Sec. 3(3) will still continue to be a private forest, as per the Private Forests Act and therefore it will fulfill the definition of “private forest” as conceived in Explanation I1 of Sec.5 of the Preservation of Trees Act, 1986. Therefore, it was held that such a land, which has been granted the benefit of Sec.3(3) exclusion would certainly be within the ambit of Sec.5(1) of the Preservation of Trees Act, 1986 and the prohibition of cutting of trees empowered by Sec.5 of the Trees Act would apply not just to the 10 enumerated trees covered by Sec.2(e) of that Act, but would take in tree of any species in view of the express definition of “tree” as per Explanation 1 attached to Sec.5. A similar view has been taken by the Division Bench in the ruling in Balakrishnan Nair v. Govt. of Kerala reported in 2005(2) KLT 485 as

¶176

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well as in State of Kerala & Anr. v. Antony Kannattu reported in 2013 (3) KLT 111.

¶178

However, Sri.K.S.Madhusoodhanan, learned counsel for

¶179

the writ petitioners would raise a contention that an entirely divergent view was expressed by the Apex Court in the case State of Kerala v. V.Abdul Ali, reported in (2013)15 SCC 274 =2013(2) KLT 881(SC) as well as by the Division Bench rulings as in Managing Trustee, Kottakkal Arya Vaidya Sala & Anr. v. State of Kerala & Ors. reported in ILR 2006 (2) Ker. 511, the judgment dated 31.3.2006 of the Division Bench in O.P.No. 3252/2003, the judgment dated 7.3.2006 in W.A.No.1449/2003 as well as the judgment of a learned Single Judge in on 5338/1994, etc. For dealing with the said contention raised by the learned counsel for the writ petitioners, it will be very pertinent to refer to the facts in each of those cases. The judgment of the Apex Court in Abdul Ali's case (supra) reported in (2013) 15 SCC 274 is in respect of 3 SLPs. SLP (C) No.1380/2006 arose out of the Division Bench judgment dated 31.3.2006 in O.P.No. 3252/ 2003, SLP No.1380/2007 arose out of the Division Bench judgment dated 7.3.2006 in W.A.No.1449/2003 and SLP No. 26236/2008 arose out of the judgment dated 19.1.2001 of a

¶180

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learned Single Judge of this Court in O.P.No.5338/1994. The facts in relation to SLP No.1302/2006 are clearly evident from a mere reading of paras 10, 11, etc. The relevant facts in that regard are also evident from a reading of the Division Bench judgment of this Court rendered on 31.3.2006 in O.P.No.3252/2003, which was the subject matter of that SLP. A reading of para 10 of the SCC report makes it clear that there was a clear finding by the appropriate forum that the land in question was held to be not covered by the Vesting & Assignment Act, 1971. Further para 13 of the SCC report, which quotes the relevant findings made by the Division Bench of this Court in the earlier MFA, clearly states that it was found in that MFA judgment that the lands in question were totally outside the purview of the Vesting & Assignment Act, 1971, and that only those lands which fall within the definition clause of the Private Forest Act, 1971, would alone fall within the ambit of Sec. 5 of the Kerala Preservation of Trees Act, etc. Therefore, evidently it was a clear finding in favour of the land owners therein that their land was totally outside the very purview of the definition of “private forest” as conceived in Sec. 2(f) of the Act and therefore, the land would stand totally outside the purview of all the provisions of the Act including

¶182

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Sec. 3 and so, since the said land does not fulfill the very definition of “private forest” as envisaged in Sec.2(f) of the Private Forest Act, the said land would equally not fulfill the definition of “private forest” as envisaged in Explanation II of Sec. 5 of the Preservation of Trees Act, 1986. SLP No.1380/2007 arose out of the Division Bench judgment of this Court rendered on 7.3.2006 in W.A.No. 1449/2003. A perusal of the said Division Bench judgment also makes it clear that there was clear and categoric finding in the previous round of adjudication before the competent forum that the lands in question, which were restored to the petitioners, were tea plantations and that it did not satisfy the definition “private forest” . The said findings of the Forest Tribunal were upheld by the Division Bench of this Court in a MFA and those findings had become final and since the said land stood totally outside the purview of the very definition of Sec. 2(f) of the Act, it was held that such a land would also not satisfy the definition of “private forest” as conceived in Explanation II of Sec.5 of the Trees Act and that the impugned prohibitory notification under Sec.5(1) of the Trees Act is thus clearly illegal and ultra vires. It is that judgment of the Division Bench of this Court in W.A.No.449/2003, that was affirmed by the

¶184

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¶185

Supreme Court in SLP No.1380/2007. The third SLP covered by the said Apex Court judgment viz., SLP No.26236/2008, arose out of a judgment of a learned Single Judge of this Court in O.P.No. 5338/1994, which on facts, merely followed the earlier referred Division Bench judgment of this Court in O.P.No.3252/2003, which in turn was the subject matter of the first SLP. Therefore, obviously all the cases considered by the Apex Court were matters, wherein it

¶186

was clearly found in the previous round of adjudication before the competent forum that the land did not satisfy the very definition of “private forest” as contemplated in Sec. 2(f) and therefore those lands stood totally outside the purview of the provisions of the Private Forest Act, 1971 and that being so, a land which does not satisfy the definition of “private forest” as per Sec.2(f) of the Private Forest Act will not also satisfy the definition of “private forest” as conceived in Explanation II of Sec.5 of the Preservation of Trees Act. Further from a reading of the Division Bench judgment of this Court in Arya Vaidya Sala's case supra reported in 2006(2) ILR. Ker. 511, would also make it clear, more particularly from para 3 thereof, that in the previous rounds of litigation therein it was clearly found that the lands in question were cultivated with agricultural crops and that it

¶187

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¶188

did not satisfy the definition of “private forest” as defined in the Private Forest Vesting Act, 1971 and that being so, the said land cannot be the subject matter of the prohibitory notification under Sec. 5(1) of the Trees Act. Whereas the other Division Bench rulings of this Court as in Joseph's case supra reported in 2005(4) KLT 504, Balakrishnan Nair's case supra reported in 2005 (2) KLT 485, Antony Kannattu's case reported in 2013 (3) KLT 111, are all matters, which are similar or identical to the facts in this case, wherein the properties concerned would only get the benefit of exclusion from Sec.3(1) vesting by virtue of the provisions contained in Sec.3(3) of the Act and therefore it was held that those lands would still continue to be private forest by virtue of the specific provisions contained in Sec. 3(2) or 3(3) of the Act and that those lands would certainly fulfill the definition of “private forest” as conceived of Explanation II of Sec. 5 of the Trees Act, etc. Therefore, the judgment of the Apex Court in Abdul Ali's case supra and other rulings relied on by the petitioners, are clearly distinguishable on facts and so the legal principles emanating therefrom are not applicable to the facts of this case. Whereas the matters in issue in this case are fully covered by the rulings of the Division Bench of

¶189

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this Court as in Joseph's case supra reported in 2005(4) KLT 504, Balakrishnan Nair's case supra reported in 2005 (2) KLT 485 and Antony Kannattu's case reported in 2013 (3) KLT 111. True that Sec.2(e) of the Trees Act encompasses within its fold only the 10 explicitly enumerated trees mentioned therein. But Explanation I of Sec.5 of the Trees Act clearly envisages that the term, “tree” envisaged by that Section would take in tree of any species. Therefore, the reach and ambit of the prohibitory power conferred under Sec.5 of the Trees Act is much wider and it would take in within its fold, not only the trees as envisaged in Sec.2(e) of the Act but would take in tree of any species as envisaged in Explanation I to Sec.5. Whereas for the applicability of the provisions contained in Sec.4 of the Act, such a wide definition will not be available and the scope and ambit of Sec.4 would relate only to the narrow definition of tree as envisaged in Sec.2(e) of the Act. In the light of these aspects, it is only to be held that the impugned Ext.P-12 prohibitory notification issued by the respondent State by virtue of the enabling provisions contained in Sec.5(1) of the Preservation of Trees, 1986, cannot be found fault with and therefore the contentions of the petitioners in that regard are only to be overruled and it is so

¶191

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¶192

accordingly ordered.

¶193

Point No.(ii) Whether the impugned Ext.P-7 proceedings issued by the respondent State Government ordering that any diversion of the petitioners' land for any non-forestry purposes would require the prior permission as per Sec.2 of the Central Act, is illegal and ultra vires and whether it requires any judicial interference ?

¶194

For determining this issue, it would be appropriate to refer to the relevant provisions contained in Sec.2 of the Forest (Conservation) Act, 1980 (Central Act 69 of 1980), enacted by the Parliament which deemed to have come into force on 25.10.1980. Sec.2 thereof reads as follows:

¶195

“Sec.2. Restriction on the dereservation of forests or use of forest land for non-forest purpose.—Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing,—

¶196

(i) that any reserved forest (within the meaning of the expression “reserved forest” in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;

¶197

(ii) that any forest land or any portion thereof may be used for any non-forest purpose;

¶198

(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;

¶199

(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.

¶200

Explanation.—For the purposes of this section ‘ ‘non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for—

¶201

(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticultural crops or medicinal plants;

¶202

(b) any purpose other than reafforestation,

¶203

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but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.”

¶205

The said Central Act does not contain any explicit definition for “forest”. It was held by the Apex court in the case T.M.Godavarman Tirumulpad v. Union of India & ors. reported in AIR 1997 SC 1228, more particularly in para 4 thereof that as the Forest (Conservation) Act, 1980 was enacted with a view to checking further deforestation which ultimately results in ecological imbalance, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership of classification thereof and the word “forest” must be understood according to its dictionary meaning and this description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Sec.2(1) of the Forest Conservation Act and that the term “forest land” occurring in Sec.2, will not only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the Government records irrespective of the ownership and that this is how it has to be understood for the purpose of Sec.2 of the Act. It will be pertinent to refer to para 4 of the said ruling in T.N.Godavarman Tirumulpad 's case (supra), which reads as follows:

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“4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word “forest” must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term “forest land”, occurring in Section 2, will not only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this Court in Ambica Quarry Works v. State of Gujarat (1987) 1 SCC 213, Rural Litigation and Entitlement Kendra v. State of U.P (1989) Suppl (1) SCC 504 and recently in the order dated 29-11-1996 in W.P.(C).No.749/95 (Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority). The earlier decision of this Court in State of Bihar v. Banshi Ram Modi (1985) 3 SCC 643 has, therefore, to be understood in the light of these subsequent decisions. We consider it necessary to reiterate this settled position emerging from the decisions of this Court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this Court. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay.”

¶208

In the judgment in the case State of Bihar v. Banshiram Modi reported in (1985) 3 SCC 643, the Apex Court dealt with a case in respect of applicability of Sec.2 of the 1980 Act. In that case a mining lease for winning mica was granted by the State Government in respect of an area of 80 acres of land, which formed part of reserved forest before coming into force of the 1980 Central Act. However, the forest lands have been dug up and mining operations in an area of 5 acres out of total area of 80 acres of land were being carried on for mica on discovery of felspar and quarts in the area. The respondent therein therefore made an application to the State Government for execution of a deed of incorporation to

¶209

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¶210

include the said mineral also in the lease. Though the Forest Conservation Act, 1980, had come into force, State Government had executed the deed of incorporation for those extra minerals without obtaining prior sanction from the Central Government under the provisions of the 1980 Act. The respondent took up the stand that he would carry on the mining operations only in the 5 acres of land which have been already been utilised for non-forest purposes even before the Act has come into force and the question posed for determination in that case is as to whether prior approval of the Central Government as per Central Act, 1980 was necessary in the facts of that case before the State Government could have granted the lease for mining extra minerals within the same area of 5 acres of land. The Apex Court held that such prior approval of the Central Government is not necessary and upheld the impugned judgment of the High Court. Their Lordships of the Supreme Court held in pages 647-648 of the SCC report [(1985) 3 SCC 643, para 10 (647-648)] as follows:

¶211

“10. The relevant parts of Section 2 of the Act which have to be construed for purposes of this case are clause (ii) of and the Explanation to that section. Clause (ii) of Section 2 of the Act provides that notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing that any forest land or any portion thereof may be used for any non-forest purpose. Explanation to Section 2 of the Act defines “nonforest purpose” as breaking up or clearing of any forest land or portion thereof for any purpose other than reafforestation. Reading them together, these two parts of the section mean that after the commencement of the Act no fresh breaking up of the forest land or no fresh clearing of the forest on any such land can be permitted by any

¶212

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¶213

State Government or any authority without the prior approval of the Central Government. But if such permission has been accorded before the coming into force of the Act and the forest land is broken up or cleared then obviously the section cannot apply. In the instant case it is not disputed that in an area of five acres out of eighty acres covered by the mining lease the forest land had been dug up and mining operations were being carried on even prior to the coming into force of the Act. If the State Government permits the lessee by the amendment of the lease deed to win and remove felspar and quartz also in addition to mica it cannot be said that the State Government has violated Section 2 of the Act because thereby no permission for fresh breaking up of forest land is being given. The result of taking the contrary view will be that while the digging for purposes of winning mica can go on, the lessee would be deprived of collecting felspar or quartz which he may come across while he is carrying on mining operations for winning mica. That would lead to an unreasonable result which would not in any way subserve the object of the Act. We are, therefore, of the view that while before granting permission to start mining operations on a virgin area Section 2 of the Act has to be complied with it is not necessary to seek the prior approval of the Central Government for purposes of carrying out mining operations in a forest area which is broken up or cleared before the commencement of the Act. The learned counsel for Respondent 1 has also given an undertaking that Respondent 1 would confine his mining operations only to the extent of five acres of land on which mining operations have already been carried out and will not fell or remove any standing trees thereon without the prior permission in writing from the Central Government. Taking into consideration all the relevant matters, we are of the view that Respondent 1 is entitled to carry on mining operations in the said five acres of land for purposes of removing felspar and quartz subject to the above conditions.”

¶214

Subsequently in the judgment in the case Ambica Quarry Works v. State of Gujarat & Ors. reported in (1987) 1 SCC 213, the Apex Court dealt with a situation of an entirely different case wherein the term of mining lease of the appellant therein was about to expire and he had applied renewal of the lease as per the provisions contained in Rule 18 of the Gujarat Minor Mineral Rules, 1966. The application for renewal of the lease was rejected on the ground that the land fell under the “Reserved Forest” area and hence Central Act of 1980 would apply to such an area and the Forest Department of the State of Gujarat has refused to give 'No

¶215

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Objection Certificate.' The contention of the appellant therein was that the land was under the control of Industries, Mines & Power Department of the State Government and therefore Central Act of 1980 did not apply to the same. After referring to the above said judgment of the Supreme Court in Bashiram Modi's case (supra), the Apex Court in para 19 of the Ambica Quarry Works' case (supra) held that the appellants in Ambica Quarry Works' case is entirely on a different stand where the appellant is asking for renewal of the quarry lease and held that it will lead to further deforestation or at least it will not help reclaiming back the areas where deforestation have taken place. Therefore, the Apex Court held in Ambica Quarry Works' case (supra) that where the matter involves renewal of a mining lease in a various area, then it would certainly require prior sanction of the Central Government as envisaged in Sec.2 of the Central Act, 1980. Thus, it can be seen from a mere reading of the judgment in Banshiram Modi's case (supra) and Ambica Quarry Works' case (supra) that the said two judgments apply to distinct and different fact situations. True, that there is an observation by the Apex Court in Godavarman Thirumulpad's case (supra) that the earlier decision of the Apex Court in Banshiram Modi's case (supra) has to be understood in the light of the specific decision as in Ambica Quarry Works' case (supra), etc. The respondents have not been able to point out to this Court that the ratio decidendi laid down in Banshiram Modi's case (supra) has been

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subsequently overruled in any decision of the Apex Court.

¶219

Before resolving the controversy in this regard as to the legality or otherwise of the view taken by the State Government in the impugned Ext.P-7 proceedings, it would be apposite to refer in detail to the facts of this case relating to the actual state of affairs of the land in question. The Forest Tribunal in its initial judgment rendered on 11.9.1978 in O.A.No.471/1976 has clearly found that the previous owners of the land were entitled for the benefit of exclusion from Sec.3 (1) vesting as per the provisions contained in Sec.3(3) of the Private Forest Act as it was clearly established therein that they had a valid title to the land on the basis of registered title deed executed before the appointed day (10.5.1971) and that the land fulfilled ceiling limit under the Kerala Land Reforms Act and further that the previous land owners could establish that there was a clear and manifest intention on their part to effect cultivation in those lands as on the appointed day. Though this judgment of the Tribunal was set aside by the Tribunal in review proceedings under Sec.8B of the Act, the matter was challenged before this Court in statutory appeal and the Division Bench in Ext.P-4 judgment clearly found that the Tribunal went wrong in allowing the Review Petition and thereby dismissing the O.A and no grounds whatsoever were made out for reviewing the considered verdict rendered by the Tribunal on 11.9.1978. True that the Tribunal in its original judgment as well as the

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Division Bench of this Court in Ext.P-4 judgment has concurrently found that the land in question was not subjected to actual cultivation so as to invoke Sec.3(2) exclusion but that land owners could successfully establish a clear case that they are entitled to the benefit under Sec.3(3) of the Act inasmuch as they had a clear intention to cultivate the land in question. This Court in Ext.P-4 appellate judgment found in para 2 thereof that the custodian had applied for issue of a commission for inspection of the property and for a commission report during the pendency of Review Petition No.626/1987 and by that time, the original applicants had parted with the possession of the property in favour of third parties who were impleaded as supplemental respondents in the Review Petition. It was also found in para 3 of the said judgment of this Court in the appeal that Exts.C-1 and C-2 are the commission reports and the sketch prepared by the Commissioner at the instance of statutory custodian of the private forest and that the Commissioner had clearly found at the time of inspection that the properties had already been converted into garden land and cultivated with coconut trees, etc. Further this Court found in page 14 of Ext.P-4 judgment that Anx.A-11 produced in the O.A. was the order of the District Collector dated 25.2.1966 which clearly shows that the land owners had applied under the Madras Preservation of Private Forest Act, 1949, for permission to clear fell 68 trees for the purpose of re-plantation and it has been

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granted. Further it was found that the third party purchasers had made various further improvements in the land as noticed by the Commissioner in his report and that the land has been brought under cultivation either by the original owners or by the transferees, etc. Therefore, a reading on Ext.P-4 judgment would clearly show that pursuant to the original judgment dated 11.9.1978 of the Forest Tribunal, Palakkad in O.A.No.471/1976, the land in question was restored to the previous owners and even before the pendency of the Review Petition, it was subjected to transfer to third parties and that steps for effecting cultivation were put in place even by the previous owners as can be seen from the proceedings dated 25.2.1966 issued by the District Collector granting permission under the Madras Preservation of Private Forest Act, 1949, to clear fell 68 trees from the land for the purpose of effecting replantation in the land. The present petitioners had purchased the land as per sale deed executed in the year 1984.

¶224

Long after the passing of Ext.P-4 appellate judgment by this Court on 19.2.1998, the EFL Ordinance 2000, was brought into force on 2.6.2000. The said Ordinance was later replaced by an Act passed by the Legislature on the same subject matter. Sec.2(c) of the EFL Act, 2003, defines “forest” as follows:

¶225

“Sec.2 Definitions .-In this Act, unless the context otherwise requires,-

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xxx xxx xxx

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(c) "forest" means any land principally covered with naturally grown trees and under growth and includes any forest statutorily recognized and declared as reserved forest, protected forest or otherwise, but does not include any land which is used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites of residential buildings and surroundings essential for the convenient use of such buildings;”

¶229

Sec.2(b) thereof defines “ecologically fragile lands” as follows:

¶230

“Sec.2. Definitions.- In this Act, unless the context otherwise requires,-

¶231

xxx xxx xxx

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(b) " ecologically fragile lands" means,-

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(i) any forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation, and

¶234

(ii) any land declared to be an ecologically fragile land by the Government by notification in the Gazette under section 4.”

¶235

Sec.3 of the EFL Act provides as follows:

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“Sec.3: Ecologically fragile land to vest in Government.- (1) Notwithstanding anything contained in any other law for the time being in force, or in any judgement, decree or order of any court or tribunal or in any custom, contract or other documents, with effect from the date of commencement of this Act, the ownership and possession of all ecologically fragile lands held by any person or any other form of right over them, shall stand transferred to and vested in the Government free from all encumbrances and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date.

¶237

(2) The lands vested in the Government under sub-section (1) shall be notified in the Gazette and the owner shall be informed in writing by the custodian and the notification shall be placed before the Advisory Committee constituted under section 15 for perusal.”

¶238

Initially, the Forest authorities has issued notification dated 12.7.2001 by

¶239

taking recourse to the provisions under the EFL Ordinance and ordering that 8.9 hectares of land (which is also inclusive of the above said 1.62 acres of land owned by the present petitioners) will stand transferred and vested with the Government as ecologically fragile land under Sec.3(1) of

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the EFL Ordinance. This was contested by the petitioners by filing application under Sec.19(3) of the Act on the ground that the lands of the petitioners will not in any manner fulfill the definition of “forest” and “ecologically fragile land” as enshrined in Secs.2(c) and 2(b) of the EFL Act and that therefore Sec.3(1) notification is ultravires and illegal and steps may be taken under Sec.19(3) of the Act so as to rescind the said notification and to restore the lands to the petitioners. On the basis of the said impugned notification dated 12.7.2001, the petitioners were dispossessed of their land and the land was taken possession by the Forest authorities concerned. An exhaustive and detailed enquiries at various levels were conducted by the Forest authorities for determining Sec.19(3) application of the petitioners. The custodian of EFL lands was fully convinced that 1.2 acres out of 1.62 acres owned by the petitioners would not in any manner fulfill the definition of “forest” and “ecologically fragile land” as defined under Sec.2(c) and 2(b) of the EFL Act and that therefore 1.2 acres of the said land is restored to the petitioners. The instant case is concerned with the said 1.2 acres of land. Ext.P-5 proceedings dated 8.4.2010 is the one passed by the custodian of EFL lands relating to the said 1.2 acres of land owned by the petitioners. It has been clearly found on page 2 of Ext.P-5 that the said extent of land of the present petitioners are tiny strips of cultivated lands which form part of a larger extent of 68 acres which are to be restored to the land

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owners as per the orders in O.A.No.471/1976. Further it was found by the custodian on the basis of clear materials on record that there are various coconut trees, mango trees and jackfruit trees in the said land which are clear evidence of cultivation and that Revenue Recovery proceedings of the Palakkad Primary Co-operative Agricultural and Rural Development Bank is pending in respect of the agricultural loan taken by the land owners. Further it was clearly found on the bottom of page 2 and top of page 3 of Ext.P-5 that the conditions clearly reveal that these small tiny bits of land are lying as a strip along the public road which is more or less plain, having cultivation and miscellaneous tree growth. It was also found therein that letters dated 18.4.2005 and 24.5.2005 issued by the Chief Conservator of Forests clearly reveals that the said extent of land of the petitioners have 17 coconut palms which are more than 18 years of age, 20 numbers of fruit bearing mango trees, 6 number of fruit bearing cashew trees, old well and remnants of old house. The report of the Chief Conservator of Forests (Vigilance) concludes with a remarks that 'since these notifications divest the owners of their holdings permanently or permanently restrain them from many activities essentially for their cultivation for sustenance, it would be advisable to have a committee to make just and fair assessment of the case in order to avoid undue hardships and complaints leading to avoidable litigations with regard to such notified areas' etc. The 2^nd para

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on page 3 of Ext.P-5 report also speaks about a report dated 30.5.2005 submitted by the Chief Conservator of Forests (Protection) which disclose that certain portions of the notified land is found to be plantations and that there is scope to exempt them and that applicants were instructed to file applications before the Principal Chief Conservator of Forests to exclude the said land from vesting and that the Conservator of Forests, Eastern Circle, Palakkad, as per report dated 12.5.2006 had submitted a proposal for exclusion of certain extent of land from the impugned notification and further that the Divisional Forest Officer has recommended to the Conservator of Forests that out of 1.62 acres of land of the petitioners, 1.2 acres could be excluded from the impugned notification retaining the eastern boundary having natural trees in the remaining 0.42 acres out of the total extent of 1.62 acres of the petitioners as ecological fragile land. It is again reiterated in the last para on page 4 of Ext.P-5 that the applicants had taken loan from the Palakkad Primary Co-operative Agricultural and Rural Development Bank for cultivation and maintenance of the land and further that the applicants had planted coconut trees, jackfruit trees, mango trees and tamarind trees in the land and having 20-30 years of age now. The said fact findings are on the basis of the report of the designated committee dated 30.11.2009 referred to as 7^th reference in Ext.P-5. Therefore, this clearly shows that cultivation was effected in the land at least from

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30.11.1979 and thereafter. Further it is found therein that the above land could not be maintained by the applicants from 2000 onwards till the date of issuance of Ext.P-5 order and that the natural growth seen in the land has the age of 10 years. It is also found therein especially on page 5 of Ext.P-5 that the natural growth covers almost 40% of the land and the planted species covered about 60% of the land and that the officers could find at least 17 coconut trees aged 24 years, 20 mango trees aged 24 years, 15 jackfruit trees aged 24 years and 20 tamarind trees aged 24 years in the land in question and there is no sign of wild life.

¶248

As mentioned earlier hereinabove, the officials concerned in the enquiry have also noted that these small pieces of the lands of the petitioners are lying as bits of land lying as a strip along the public road which is more or less the same and which is having cultivation and miscellaneous tree growth, etc. Further the custodian was fully satisfied that if the above land coming to 1.2 acres is retained as ecologically fragile land, then it will be against the spirit of Promotion of Tree Growth Act, 2005, and the designated committee recommended that the 1.2 acres of land should be excluded from the impugned EFL notification. It is again reiterated in page 6 that the natural growth in the property is having only the age of 10 years and most of these trees could have happened to be grown when the petitioners were dispossessed of the

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property in view of the EFL notification issued in the year 2001. On this basis, the custodian concludes that the said extent of land coming to 1.2 acres belonging to the petitioners will not fulfill the definition of “forest” under Sec.2(c) of the EFL Act, or the definition of “ecologically fragile land” as enshrined in Sec.2(b) of the EFL Act. It is on this basis that the land was ordered to be excluded from the EFL notification as per Ext.P-5 proceedings. So the land will not also satisfy the dictionary meaning of the word, “forest”. Since the land has secured Sec. 3(3) exclusion under the Private Forests Act, w.e.f. 11.9.1978, the revenue records can show the land only as private land subject to land revenue tax and not as “Forest” land. The District Collector has given permission to the owners of these lands as early as on 25.2.1966 for felling of trees for effecting replantation. Therefore, a meticulous and close scrutiny of the various findings and materials on record that emanate from Ext.P-4 appellate judgment of the Division Bench of this Court as well as Ext.P-5 proceedings passed by none other than the custodian of EFL lands and that too on the basis of various reports of the high ranking officials of the Forest Department would show that cultivation was effected at least from 30.11.1979 onwards in the said land of the petitioners.

¶251

True that the previous owners had not put up a case before the Forest Tribunal that they are entitled for the benefit under Sec.3(2) of the Act on the ground that there was actual cultivation as on the

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appointed day. Though the case that was put up by the previous owners before the Forest Tribunal was one under Sec.3(3) of the Act, the Tribunal and this Court as the appellate forum have clearly found that as early as on 25.2.1966 the District collector had granted permission to the previous owners under the provisions of the Madras Preservation of Private Forest Act, 1949, for permission to clear fell 68 trees for the purpose of re-plantation, etc. The custodian was fully satisfied based on various detailed enquiries conducted by the top ranking officials of the Forest Department, like the Chief Conservator of Forests, Chief Conservator (Protection), Divisional Forest Officer, etc., that cultivation has been going on in the said land at least since 30.11.1979 and thereafter. It is to be noted that the Tribunal had allowed O.A.No.471/1979 as per judgment dated 11.9.1978 and it has come out in Ext.P-4 judgment of this Court that the land was taken possession by the previous land owners themselves. Though the present petitioners had purchased the property only in the year 1984, the undisputed materials which are relied on by none other then custodian of EFL lands would clearly show that cultivation was going on in the said land since November, 1979, onwards. It is also to be noted that the State Legislature themselves have taken cognizance in the preamble of the Kerala Private Forest Act, 1971, that private forest in the State of Kerala are agricultural lands and that the said Act has been framed by the

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Legislature with the objective that such agricultural land should be so utilised as to increase agricultural production in the State and to promote the welfare of the agricultural population in the State.

¶256

The above aspects in the Preamble to the Act have been taken due note by their Lordships of the Supreme Court in para 2 of the ruling in State of Kerala v. Abdul Ali reported in (2013) 15 SCC 274. Though in a different context the Apex court has also held in the judgment in Joseph v. State of Kerala reported in 2007 (3) KLT 144 (SC), that the provisions contained in Sec.3(3) of the Kerala Private Forest Act have to be construed liberally. The Division Bench of this Court in the case State of Kerala & anr. v. Antony Kannattu reported in 2013 (3) KLT 111= 2013 (3) KLJ 298 = 2013 (2) KHC 889, has held that when the exclusion is provided under the Kerala Private Forest Vesting Act, 1971, specifically on the ground that the lands are being held with an intention to cultivate the same, then it necessarily postulates permission for cultivation when the exclusion has been granted under Sec.3(3). It was also further held therein by the Division Bench in para 9 thereof that attempt of the authorities by citing the ground of ecological imbalance would lead to the consequence of the land owner not able to enjoy the fruits of such restoration and further it was also observed in para 10 thereof that the cultivation cannot be allowed to be totally eradicated, especially when the exclusion contemplated under the Kerala Private

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Forest Act, 1971, is on the basis of intention to cultivate as on the appointed day, etc. Though the above observations of the said judgment of the Division Bench are in the context of the provisions contained in the Private Forest Act, visa-a-vis that in the Preservation of Trees Act, 1986, the said observations are also fully relevant for consideration of the wholesome legal principles laid down by the Apex Court in Banshiram Modi's case reported in (1985) 3 SC 348. In this context, it is to be noted that the authorities have clearly and unequivocally found in Ext.P-5 that the present land coming to 1.2 acres owned by the petitioners does not in any manner satisfy the definition of “forest” as defined in Sec.2(c) of the EFL Act and therefore, it will not come within the definition of EFL as conceived in Sec.2(b) of the said Act.

¶259

It is also true that even the State Legislature has taken cognizance of the aspect that private forest in the State of Kerala are agricultural lands. But the wordings of Secs.2(3) and 3(3) of the Act are in such a manner that even after granting the benefit of exclusion from the process of Sec.3(1) vesting the land would otherwise remain as private forest. The petitioners' land could have remained totally outside the applicability of Private Forest Act, 1971, only if they could plead and prove either that the land did not satisfies with the definition of Sec.2(f) of the Private Forest Act or that even if it is private forest within the meaning of Madras Act, 1949, it would come within anyone of the 4

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exclusions envisaged in Sec.2(f)(1)(i) of the Private Forest Act, 1971. Such a case was never set up by the previous owners while instituting O.A.No.471/1976 before the Forest Tribunal, Palakkad. Therefore, in view of the highly technical provisions contained in Secs.2(2) and 2(3) of the Act the land of the petitioners would still legally continue to have the colour of “private forest” as per the Private Forest Act, 1971.

¶262

The respondents also do not have a case that the present lands of the petitioners would fulfill the definition of “vested forest” as per Sec.2(j) of the EFL Act, which defines “vested forest” to mean any forest vested in the Government under Sec.3 of the Kerala Private Forest (Vesting & Assignment) Act, 1971. It is to be noted that as the lands of the petitioners were excluded from the liability of vesting as per Sec.3(1) of the Act in view of the exclusion granted as per Sec.3(3) of the Act, the said land will not fulfill the definition of “vested forest”. The respondents also do not have a case that the lands of the petitioners would fulfill the definition of “reserve forest” or “protected forest” within the meaning of the Kerala Forest Act, 1971. It is their fully admitted case in Ext.P-5 that it would not even satisfy the definition of “forest” as per Sec. 2(c) of the EFL Act. But, in view of the technical provisions that are retained in Secs.3 (2) and 3(3) of the Act, the Division Bench of this Court in State of Kerala v. Kumari Varma reported in 2011 (1) KLT 1008, while dealing with these aspects, has held in para 22 thereof as follows:

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'22. It can be seen from the above that it is possible in the State of Kerala that land which can be described as forest land can be held by a private person in the following contingencies:

¶265

(i) Lands falling within the boundaries of a Reserved Forest under the Kerala Forest Act, if rights are created by grant of patta, etc. under S.7 of the Kerala Forest Act.

¶266

(ii) Protected forests falling under the scope of Chapter IV of the Kerala Forest Act of 1961.

¶267

(iii) Lands falling within the scope of S.3(2) [ Section 3(2). Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto.

¶268

Explanation.- For the purposes of this sub-section, “cultivation” includes cultivation of trees or plants of any species.] and 3(3) [ Section 3(3). Nothing contained in sub-section (1) shall apply in respect of so much extent of private forests held by an owner under a valid registered document of title executed before the appointed day and intended for cultivation by him, which together with other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling are applicable to him under Section 82 of the said Act.] of the Kerala Private Forests (Vesting and Assignment) Act, 1971.

¶269

The expression 'held' itself is a wide expression capable of taking within its sweep both the rights of title as well as the rights pertaining to possession; either as the owner or lessee, etc.'

¶270

In the abovesaid discussion in para 22 of Kumari Varma's case supra was in the context of dealing with various aspects on the basis of which, a land can be described as forest land, which is held by private person. Therefore, though the present land of the petitioners does not fall either in the definition of “reserved forest” or “protected forest” or “vested forest”, it would will still technically remain as “private forest” in view of the provisions contained Sec.3(3) of the Kerala Private Forest Act, 1971.

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In the light of these provisions, the resultant position that emerges is that the petitioners' land would be broadly taken as a “forest” as contemplated in the provisions of the Forest (Conservation) Act, 1980, enacted by the Parliament.

¶273

However, taking into account the special and indisputable aspects that have emerged in this case, this Court is of the considered view that the wholesome legal principle laid down by Apex Court in Banshi Ram's case supra could be befittingly applied in the facts and circumstances of this case. The predecessors in interest of the petitioners were lawfully granted permission under Sec.3(3) of the Private Forest Act, to effect cultivation in the land as per judgment dated 11.9.1978 of the Forest Tribunal, Palakkad, which was subsequently fully upheld by this Court in Ext.P-4 appellate judgment. It has clearly come out on the basis of the materials gathered, not only in the OA as reflected in Ext.P-4 judgment, but also on the basis of the clear materials gathered by none other than the custodian of the EFL Forest that the cultivation was in fact going on in the land in question at least since November, 1979 onwards. Apart from the fact that this conclusion is on the basis of the materials collected by the Forest Department themselves, this Court is also reinforced in relying on these materials inasmuch as the possession of the land was given to the previous owners pursuant to the judgment dated 11.9.1978 of the Forest Tribunal. Since the land owners were

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carrying on a lawful activity of cultivation in their own privately owned lands at least from November, 1979 and since the said right of cultivation, which is conferred on the owners is not subjected to any further timely renewal as in the case of leases, their right and interest to continue such cultivation would certainly deserve the respect and deference of the authorities concerned. Ext.P-5 has clearly shown that more than 60% of the land of the petitioners are containing cultivation and only about 40% thereof has naturally grown vegetation and that majority of naturally grown vegetation has occurred after the petitioners were dispossessed from the land pursuant to the EFL vesting, that was ordered as per the notification issued in the year 2011, which was subsequently withdrawn as per Ext.P-5. Therefore, the activity of cultivation in lands, though legally described as “private forest”, which the State Legislature themselves have taken cognizance as lands which are used for agricultural purposes, should receive a more wider and liberal construction while determining the issues of the precious rights to cultivate on the land. Therefore, this Court is of the considered view that in the special facts and circumstances of this case, the right of cultivation which was lawfully going on before coming into force of the Forest (Conservation) Act, 1980 (which came into force on 25.10.1980) would not require any further permission or prior sanction of the Central Government as contemplated in Sec.2 thereof. But it is to be noted that

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such a right should be conferred only to cultivations, which were lawfully being carried out by the land owner as on the coming into force of the Central Act and it cannot be construed to include any other activity which would have any detrimental effect of the deforestation or causing any imbalance to the ecology of the area in question. Such cultivation by the land owner must be in lands within the ceiling limits prescribed in Secs.3 (2) and 3(3), etc. As already held by this Court hereinabove, the impugned Ext.P-12 prohibitory notification under Sec.5 of the Preservation of Trees Act has been upheld by this Court. Therefore, any carrying on of cultivation by the petitioners in the abovesaid 1.2 acres of land should be without leading to any further breaking up or clearing of any forest land or portion thereof. It should also be subject to the condition that the petitioners should fully comply with the prohibition contained in the impugned Ext.P-12 notification issued under Sec. 5(1) of the Preservation of Trees Act, in the matter of cutting of any trees in the area. In the light of the above aspects, it is only to be held that the view taken by the respondent State Government in the impugned Ext.P-7 proceedings dated 24.4.2013 that any use of the land of the petitioners for personal cultivation by the land owner commenced before the coming into force of the 1980 Act, would require prior permission of the Central Government, is not legally correct and tenable and is liable to be interfered with and it is so accordingly ordered. However, the petitioners

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will have to comply with the aforestated conditions.

¶280

In an almost similar scenario, this Court as per Ext.P-11 judgment dt.18.6.2014 has allowed W.P.(C).No.12998/2014 whereby the impugned direction requiring prior permission under the Central Act, 1980 was quashed. It is not in dispute that the respondents have not filed any appeal thereto and Ext.P-11 judgment has become final. So a differential treatment to the petitioners would amount to hostile discrimination.

¶281

The last issue that remains is the request of the petitioners as reflected in Ext.P-13 for permission to construct a residential abode in the abovesaid land. The learned counsel for the petitioners submits that it has been clearly found in Ext.P-5 order itself that there was an old house situated in the property and that by the long passage of time, it could not be properly used and further that the petitioners now want to put up a residential abode in that property in order to ensure that personal cultivation is effectively carried out by them and that the residential requirement is a purpose, which is incidental and ancillary to the main purpose of cultivation of the land, as Sec.3(3) obligates that exclusion from Sec. 3(1) vesting is with the strict condition that the land should be under the personal cultivation of the land owner. From a reading of Ext.P-13 letter issued by the Grama Panchayat it is seen that DFO has given an intimation, presumably on the basis of Ext.P-7 that the

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diversion of land for any non-forestry purpose would require prior sanction of the Central Government, etc. However, no final decision appears to have been taken either by the Panchayat authorities or by the Forest authorities on the request of the petitioners for constructing a residential house.

¶284

It is admitted by none other than the custodian of EFL lands in Ext.P-5, as can be seen from page 3 thereof, that there existed an old house in the property in question, which is not now in use. The benefit of exclusion from Sec.3(1) vesting as granted by the provisions in Sec. 3 (3) thereof, is to effectuate the intention of the land owner for effecting personal cultivation in the land. If the petitioners could actually establish and convince before the authorities that the residential abode is to be set up so as to replace the old house therein, is for the purpose of effectively carrying out the obligations for personal cultivation, then certainly it is a purpose which is ancillary and incidental to the main objective of personal cultivation in the land by the land owner. That is a question of fact, which the petitioners should fully convince and satisfy the Panchayat authorities and the Forest authorities. True that under the relevant provisions of the Kerala Panchayat Raj Act and the Kerala Building Rules, framed thereunder, the authority that is to take decision on the grant of building permit is the local authority concerned. But in case of like this, it is not proper that the local authorities could take a

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unilateral decision in the matter as done in Ext.P-13 and the Panchayat authorities have rightly referred the matter to the Divisional Forest Officer for his considered views in the matter. Therefore, in such matters the local authorities should be guided in the matter to take a decision after full and effective consultation with the competent Forest authorities concerned in order to ensure that the spirit and substance of the Central Act (Central Act, 1980) are fulfilled. Incidentally, this Court is also inclined to take the view that in these matters a mechanical approach by the Panchayat authorities would be highly inappropriate taking into account the objectives sought to be achieved by the Central Act. If the area in question is quite proximate to the reserved forest or protected forest or such other forest area, then it is only appropriate that the construction that is sought to be put forward in order to effectuate the purpose of cultivation should be one which is done in an eco-friendly manner so as not to disturb the ecological balance in the area. The petitioners may seriously consider whether they could opt for a ecofriendly construction set up like a bamboo house or wood house or mud house, etc. so as to avoid RCC construction so that such an construction would not only be in tune with their incidental purpose so as to carry out the main purpose of cultivation, but also is done in an eco-friendly manner so as not to disturb the ecological balance of the area in question. While considering such request for permission, the authorities

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can insist for such eco-friendly construction. As no final decision appears to have been taken by the Panchayat authorities and the Forest authorities in the matter referred to in Ext.P-13, it is only to be observed that these are all matters which are to be seriously considered by those authorities while dealing with the application of the petitioners for building permit and such consideration should also be in the light of the specific findings and observations of this Court in this judgment.

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Sri.K.Sandesh Raja, learned Special Government Pleader (Forest) appearing for the respondents raises a serious apprehension that it may be true that the instant case may be of a small stripe of land lying proximate to a public road as found in Ext.P-5, but there would be other cases of private forest having large extent of area, where the land owners might sell the land in small pieces to different individuals who may have commercial interest in mind and that they may misuse any privilege that is granted by attempting to resort to such other commercial buildings etc. under the guise that the proposed construction is one that is ancillary and incidental to the main objective of cultivation. This Court is certainly of the view that it is the bounden duty of the authorities concerned especially the Forest authority to screen each and every application in that regard and ensure that the request, if so made, is not lacking any bona fides and if the plan of the proposed construction and the nature of the construction reveal that those are primarily meant for

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W.P.(C)30773/14 - : 58 :-

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commercial exploitation under the guise of meeting the main objective of cultivation, then certainly they have the discretion to reject such request and to take a very strict view in the matter. Each case will have to be judged in the facts and circumstances that are disclosed in those matters. It is the wholesome principle of public law that merely because there is a possibility of abuse of power, it will not lead to the situation that the very conferment of public power on the public authorities is unreasonable or arbitrary and in such matters, it is the actual exercise of power that should be carefully scrutinized and that will not in any manner ordinarily whittle down the conferment of discretionary powers. Merely because there could be a possibility of abuse of certain rights and interests conferred on private individuals, will not lead to the situation of not recognizing the rights and interests of individuals even in genuine cases. Those are matters which are to be evaluated and scrutinized judiciously in each case to see that the request made is not a facade for extraneous purposes, but it is only a genuine request made out for carrying out the main objective of actual cultivation in the land by the land owner. Therefore, these are all aspects, which should be very seriously and strictly scrutinized by the local authorities as well as the Forest authorities so that only genuine cases are filtered for consideration. As no final decision has been made in the matters referred to in Ext.P-13, it is not necessary for this Court to decide on these aspect any further, but

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to conclude that it is for the competent authority concerned to take a decision in the matter taking into account the totality of the facts and circumstances of the case and also taking into account the genuineness of the plea put forward by the applicants that the intended construction is only for replacement of the old construction, which should be established only as an incidental purpose for meeting the main objective of personal cultivation in the land by the owners themselves.

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In the result, following orders are passed:

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(i) The view taken by the 1^st respondent State Government that any use of the land of the petitioners for personal cultivation by the land owner as per Sec. 3(2) or 3(3) of the Private Forest Act, would require the prior permission of the Central Government under Sec.2 of the Forest (Conservation) Act, 1988 is legally unsustainable and untenable and the same is quashed.

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(ii) The petitioners as land owners can continue to carry out the cultivation to which land has been subjected to prior to coming into force of the Central Act, 1980 and for that limited purpose alone, no further permission is required. But any such cultivation activity undertaken by the petitioners, should not amount to any further breaking up or clearing of any forest land or portion thereof and any such activity requires any further breaking up or clearing off of the forest land or any portion thereof, then certainly it would require the prior sanction and permission of the Central Government as per Sec. 2 of the Central Act. The petitioners should fully comply with the prohibitory orders passed by the respondents as per Ext.P-12 issued under Sec.5(1) of the

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W.P.(C)30773/14 - : 60 :-

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Preservation of Trees Act, 1986.

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(iii). The petitioners' application for grant of construction permit for putting up any residential abode in the property in question, may be considered by the local authority concerned as well as by the Forest authorities in the light of the observations made by this Court and they need to consider the request only if they are fully satisfied about the genuineness of the plea that it is required as an ancillary or incidental purpose for carrying out the main objective of cultivation in the land by the owners, etc. Those are matters, which are best left to be considered by the competent authorities themselves as no final decision appears to have been taken in the matter in Ext.P-13, while considering such requests, the authorities can insist for eco-friendly constructions.

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With these observations and directions, the aforecaptioned Writ Petition (Civil) stands finally disposed of.

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Sd/-

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sdk+

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ALEXANDER THOMAS, JUDGE

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///True Copy///

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P.S. to Judge

Jose v. State of Kerala

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Jose v. State of Kerala

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