The High Court dismissed a writ petition challenging a notification prohibiting tree cutting on land. The court held that since the land was deemed private forest (though exempted from vesting), the tree conservation law applied, and allegations of mala fides were not substantiated.
Writ petition dismissed; no order as to costs; Exhibit P6 notification upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 09TH DAY OF JUNE 2020 / 19TH JYAISHTA, 1942
WP(C).No.10915 OF 2014(L)
PETITIONER/S:
1 V.S.JOSEPH AGED 70 YEARS S/O.SEBASTIAN, RESIDING AT VELUMANNIL, VENGERI POST, SULTHANBATHERI, WAYANAD - 673 122. (DECEASED)
2 THRESSIAMMA.K. W/O. LATE V.S. JOSEPH, AGED 72 YEARS, RESIDING AT VAYALAMANNIL HOUSE, MANTHONDIKUNNU, SULTHANBATHERI, WAYANAD.
3 REKHA.V.JOSE, AGED 45 YEARS D/O. V.S.JOSEPH, RESIDING AT PARACKAL HOUSE, KUPPADY POST, SULTHANBATHERI, WAYANADU.
4 RANI.V.JOSE, AGED 40 YEARS D/O. V.S.JOSEPH, KOCHUMELATHIL HOUSE, POOMAL POST, SULTHANBATHERI, WAYANADU.
(ARE IMPLEADED AS PER ORDER DATED 6-2-2020 IN I.A.NO.1/2020).
BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH
RESPONDENT/S:
3 THE DIVISIONAL FOREST OFFICER SOUTH WAYANAD FOREST DIVISION, KALPETTA- 673 121.
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OTHER PRESENT:
SPL.GP.FORESTS SANDESH RAJA K.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0106-2020, THE COURT ON 09-06-2020 DELIVERED THE FOLLOWING:
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V.G.ARUN, J.
----------------------------------------------W.P(C).No. 10915 of 2014
----------------------------------------------Dated this the 9th day of June, 2020 JUDGMENT
The challenge in this writ petition is against Exhibit P6 order by which the Government, in exercise of the power under Sub-section (1) of Section 5 of the Kerala Preservation of Trees Act, 1986 (for short, 'the Trees Act') directed that no tree standing in 0.67 acres of land belonging to the petitioner, situated in Re-Survey No.676/pt in Irulam Village (old Poothadi Village) Wayanad District shall be cut, uprooted, burnt 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. The events leading up to the issuance of Exhibit P6, as narrated in the writ petition are as follows:
From the year 1963 onwards, the petitioner's father was in possession and enjoyment of three acres of land in Irulam Village. The petitioner's father constructed a residential house and cultivated the property with coffee, pepper and seasonal crops and planted some teak tees. While so, in the year 1967, pursuant to a family settlement, petitioner became absolute owner of the property and continued with the cultivation and agricultural operations. The
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petitioner also obtained purchase certificate for the land from the Land Tribunal, Sultan Bathery. In the year 1983, the petitioner sold an extent of 1.33 acres to one Sukumaran. The remaining 1.67 acres of land and residential building continued to be in his possession and enjoyment. While so, the Custodian (Vested Forest), Olavakkode notified the property as private forest vested in the Government as per the Kerala Private Forests (Vesting and Assignment) Act, 1971 ('the Vesting Act', for short). Thereupon, the petitioner filed O.A.No.41/2000 before the Forest Tribunal, Kozhikode under Section 8 of the Vesting Act for a declaration that the 1.67 acres in his ownership and possession is not a private forest vested in Government. Alternatively it was also contended that since the land is under the personal cultivation of the petitioner, it is liable to be exempted under Section 3(2) of the Vesting Act. The Tribunal dismissed the original application, finding the property to be private forest vested in the Government and holding the petitioner to be disentitled for the benefit of Section 3(2). Aggrieved, the petitioner filed M.F.A.No.343 of 2003. The appeal was dismissed under Exhibit P2 judgment and thereupon, the petitioner filed a review petition (R.P.No.375 of 2009) contending that out of the 1.67 acres, 67 cents was cultivated with arecanut, coconut, coffee, teak etc and comprises of his residential house and hence cannot be termed as private forest vested in the Government. In the review petition a report was obtained from the Divisional Forest Officer, regarding the present
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condition of the property. The DFO filed the report along with a sketch, demarcating the 67 cents cultivated with arecanut, coconut, coffee, teak etc. This Court took note of the fact that the petitioner is residing in the house situated in the 67 cents and that, against the neighbouring properties there was no claim of vesting. Based on the report of the DFO it was found that the 67 cents stand distinguished from the remaining one acre. Accordingly, the review petition was allowed in part as per Ext.P3 order, declaring the 67 cents of land as not vested forest. Consequently, the land had to be restored to the petitioner. But, in order to deprive the petitioner from enjoying the fruits of Exhibit P4 order, the Government issued Exhibit P6 notification under Section 5(1) of the Trees Act. Later, Exhibit P7 certificate was issued acknowledging the fact of restoration, subject to the restriction imposed under Exhibit P6 notification.
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Exhibit P6 notification. It is contended that Exhibit P6 was issued to circumvent the declaration in Exhibit P3 order, which would be clear from the fact that other than the 67 cents, no other adjoining property has been brought under the purview of Exhibit P6 notification.
7
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utilised to increase the agricultural production in the State and to promote the welfare of the agricultural producers in the State. The definition of 'Private Forest' under Section 2(f) of reads;
“2. Definitions.-
(f) "private forest" means-
(1) In relation to the Malabar district referred to in subsection (2) of Section 5 of the state Reorganisation Act, 1956 (Central Act 37 of 1956)-
(i) any land to which the Mardras Preservation of Private Forests Act, 1949 (Madras Act XXVII of 1949), applied immediately before the appointed day excluding-
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 for purposes ancillary to the cultivation of such crops;
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(ii) any forest not owned by the Government, to which the Madras Preservation of Private Forests Act, 1949 did ot apply, including waste lands which are enclaves within wooded areas.
(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.
Explanation .- For the purposes of this clause, a land shall be deemed to be a waste land notwithstanding the existence thereon of scattered trees or shrubs; “
Section 3, which is the vesting provision, reads as under;
“3. Private forests to vest in Government. -
(I) 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 (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 bested in the Government free from all encumbrances, ad the right, title and interest of the owner or any other person in any private forest shall stand extinguished.
(2) Nothing contained in sub-sections (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.
(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.
(4) Notwithstanding anything contained in the Kerala Land Reforms Act, 1963, private forests shall, for the purposes of subsection (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.”
Section 7 provides for the constitution of Tribunals for resolution of the disputes. Under Section 8, the disputes to be decided are; (i) whether any land is private forest; or (ii) whether any private forest or portion thereof has vested in the Government or not. Going by the scheme of the Act, the resolution of the former dispute would depend upon the exclusion clause in Section 2(f)(1)(i) and of the latter, on the exemption under Sections 3(2) and (3). Therefore, when a dispute is raised regarding the status of any land as private forest or otherwise, it would fall under category A to D in Section 2(f)(1)(i). When it comes to the question as to whether any private forest or portion thereof has
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vested in the Government or not, the exemptions under Sections 3(2) and 3(3) become relevant. If a particular land is found to be private forest, then the only manner in which vesting can be avoided is as provided under Sub-Sections (2) and (3) of Section 3. In this context, the following finding of this Court in Exhibit P3 order assumes importance;
“ We, therefore, allow the review petition in part by declaring that 67 cents of land marked in the sketch prepared and produced by the DFO ' is not vested forest ', which the review petitioner is entitled to retain. However, the one acre of land which has forest trees as well as planted trees, will continue to be treated as vested forest.”
There is no finding in Exhibit P3 to the effect that the 67 cents is not private forest. The finding is that the land is not vested forest which can only mean that the land is private forest, but has not vested in the Government by virtue of the exemption under Subsections (2) or (3) of Section 3 of the Vesting and Assignment Act.
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resulting in considerable soil erosion and loss of timber wealth. Section 4 of the Act restricts the cutting of certain varieties of trees, while Section 5 prohibits the cutting of all species of trees from private forests and from the Cardamom Hills Reserve or any other areas cultivated with cardamom trees, except on the ground that the tree constitutes a danger to life or property; or the tree is dead, deceased or windfallen. No one has a case that the land in question is within the Cardamom Hills Reserve or is in an area cultivated with cardamom. The only dispute is whether the land falls within the definition of private forest. Explanation II to Section 5, states that, for the purposes of Section 5(1), the expression “private forest” means any land which immediately before the 10th day of May, 1971, was a private forest as defined in the Vesting Act. The explanation is therefore a piece of legislation by reference.
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exemption under Vesting Act would have no relevance in deciding the validity of the notification issued under Section 5(1) of the Trees Act.
“ 5. In this case, we must hold that the allegation of mala fides of the appellant remains as an allegation, the same having not matured into the status of proof as required under law, for more than one reason. Firstly, mala fides is a state of mind. As such, it, as a legal requirement, has to specifically relate to a person from whose mind the mala fides have
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emanated. That can only be a specified individual and not the post which a particular individual holds. Therefore, in order to prove mala fides, it is absolutely necessary under law that the individual who mans the post against whom allegations of mala fides are raised is impleaded in the case in his personal capacity and not in his official capacity. In the present case, we find that the allegations of mala fides are raised against the Custodian of Vested Forests, Kozhikode and District Forest Officer, Mannarkad. The appellant has not chosen to implead the persons who were manning the posts at the relevant time in their personal capacity.....”
In the result, I find no reason to interfere with Exhibit P6 notification in exercise of the power of judicial review. The writ petition is hence dismissed. No order as to costs.
V.G.ARUN, JUDGE
vgs
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APPENDIX
PETITIONER'S/S EXHIBITS:
| EXHIBIT P1 | EXT.P1: A TRUE COPY OF THE ORDER DATED 12/12/2002. |
|---|---|
| EXHIBIT P2 | EXT.P2: A TRUE COPY OF THE JUDGMENT IN MFA NO.343/03 DATED 2/1/09. |
| EXHIBIT P3 | EXT.P3: A TRUE COPY OF THE ORDER IN R.P.NO. 375/09 DATED 11/11/09. |
| EXHIBIT P4 | EXT.P4: A TRUE COPY OF THE NOTES OF INSPECTION DATED 25/4/02. |
| EXHIBIT P5 | EXT.P5:A TRUE COPY OF THE REPORT AND SKETCH OF RESPONDENTS DATED 24/10/09. |
| EXHIBIT P6 | EXT.P6: A TRUE COPY OF THE NOTIFICATION GO (P) NO.75/2013/F&WLD DATED 1ST AUGUST 2013. |
| EXHIBIT P7 | EXT.P7: A TRUE COPY OF THE CERTIFICATE AND SKETCH ISSUED BY THE 3RD RESPONDENT DATED 16/12/2013. |
| EXHIBIT P8 RESPONDENTS' EXHIBITS: |
EXT.P8: A TRUE COPY OF THE MAHAZER PREPARED BY THE FOREST DEPARTMENT, RANGE OFFICER AND TEAM DATED 27/1/14. |
EXHIBIT R1(a): COPY OF LETTER NO.5726/E2/2013/F&WLD DATED 4.9.2013
3 issues framed by the court
Whether a notification under Section 5(1) of the Kerala Preservation of Trees Act can be issued against land exempted from vesting under Section 3(2) of the Kerala Private Forests (Vesting and Assignm
Whether the land in question falls within the definition of private forest for the purpose of restricting tree cutting notifications.
Whether allegations of administrative mala fides were sufficiently proved to sustain the writ petition.
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V.S. JOSEPH ORS.
STATE OF KERALA ORS.
V.G.ARUN
As recorded by the court registry
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