M T JOSEPH Vs. STATE OF KERALA
LAWS(KER)-2005-10-29
HIGH COURT OF KERALA
Decided on October 06,2005

M.T.JOSEPH Appellant
VERSUS
STATE OF KERALA Respondents





Cited Judgements :-

V.S.JOSEPH VS. STATE OF KERALA [LAWS(KER)-2020-6-8] [REFERRED TO]
TOMY VS. STATE OF KERALA [LAWS(KER)-2011-6-208] [REFERRED TO]
STATE OF KERALA, VS. ANTONY KANNATTU [LAWS(KER)-2013-6-154] [REFERRED TO]
ABDUL KASSIM VS. STATE OF KERALA [LAWS(KER)-2024-7-86] [REFERRED TO]
THE RANGE OFFICER/AUTHORISED OFFICER KERALA FOREST DEPARTMENT AND ORS. VS. MUNNAR TEA GARDEN RESIDENCY [LAWS(KER)-2016-3-53] [REFERRED TO]
T. EASWARANUNNI AND ORS. VS. STATE OF KERALA AND ORS [LAWS(KER)-2020-2-216] [REFERRED TO]


JUDGEMENT

S. Siri Jagan, J. - (1.)By the impugned judgment, the learned Single Judge repelled the challenge of the appellant against Ext.P9 notification issued by the 1st respondent-State of Kerala under Section 5 of the Kerala Preservation of Trees Act, 1986 (for short 'the Act') prohibiting cutting of trees in the area referred to therein, which area was exempted from vesting under Section 3(3) of the Kerala Private Forests (Vesting & Assignment) Act, 1971, by orders of the Forest Tribunal, as confirmed by this Court in appeal, as a property intended for cultivation, in favour of the father of the appellant which he claims to have devolved by succession on the appellant. That judgment is under challenge in this appeal.
(2.)The contentions of the appellant against Ext.P9 notification are threefold. (1) In so far as the land in question had been exempted from vesting by order of the Forest Tribunal and confirmed by this Court in Appeal, under Section 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971, as a property intended to be cultivated, the notification essentially interferes with the statutory right of the appellant under the Kerala Private Forests (Vesting and Assignment) Act, 1971 to get the land cultivated and, therefore, is unsustainable. (2) Ext.P9 notification has been actuated by mala fides in view of the fact that it has been issued to negative the rights of the appellant, which was upheld by the Forest Tribunal and this Court, after prolonged litigation, at every stage of which the authorities have opposed tooth and nail to prevent the predecessor-in-interest of the appellant and the appellant, from taking possession of the same. (3) Even assuming that Ext.P9 notification is valid, the same can be taken to have prohibited cutting of only those trees included in the definition of tree as contained in Section 2(e) pf the Kerala Preservation of Trees Act, 1986 and not all trees standing in the property.
(3.)The first contention of the appellant cannot be countenanced in view of the purpose for which the Kerala Preservation of Trees Act, 1986 was enacted and the over-riding effect of Section 5 of the Act, under which Ext.P9 notification has been issued, vis-a-vis the provisions contained in any other laws, judgment, decree, order of any Court, Tribunal or other Authority or in any agreement or other arrangement. The very fact that as per Ext.P1 order of the Forest Tribunal and Ext.P2 judgment of this Court in M.F.A. arising out of Ext.P1 order, the father of the appellant was granted exemption from vesting of the property in question, under Section 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971, would categorically go to show that the land in question is a private forest and the father of the appellant was granted exemption for the purpose of cultivating the said land. As such, Section 5 of the Act which applies to private forest gets specifically attracted. As is clear from the statement of objects and reasons of the Act, the Act has been enacted for preventing indiscriminate felling and destruction of trees in the State. Since the Government feared that it may result in quick denudation of the forest growth and consequent soil erosion, land slides, flood etc., Government was of opinion that such a situation is also detrimental to ecological balance. Government noticed that of late, felling of trees and destruction of flora and fauna are reported to be on the increase and that there was no effective law to prevent this tendency and, therefore, Government decided to enact a law for imposing restrictions on the cutting of trees in the State and regulating cultivation in the hill areas of the State. This very laudable and absolutely essential object, in the present day circumstances, was sought to be achieved by the enactment of the Kerala Preservation of Trees Act, 1986. Section 5 of the Act which starts with the non-obstante clause "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..." was enacted in 1986. Of course, this was only a successor of the Kerala Restriction on Cutting and Destruction of Valuable Trees Act, 1974 and the Kerala Preservation of Trees and Regulation of Cultivation in Hill Areas Ordinance, 1983, but contains more rigorous and stricter provisions in the context of cutting of trees. The Kerala Private Forests (Vesting and Assignment) Act was enacted in 1971. As such, the Kerala Preservation of Trees Act is a later Act. In view of the said fact and the non-obstante clause in Section 5 of the said Act, Section 5 of the Act will have an over-riding effect on any of the provisions in the Kerala Private Forests (Vesting and Assignment) Act. Therefore, there is no merit in the contention of the appellant that the provisions of the Act in so far as they run counter to the Private Forests (Vesting and Assignment) Act, 1971 is invalid and unenforceable. In the above circumstances, the fact that the appellant's father was granted exemption from vesting under the Kerala Private Forests (Vesting and Assignment) Act, 1971, is of absolutely no relevance in deciding the validity of Ext.P9 notification issued under Section 5 of the Act. Therefore, we find absolutely no merit in the contention of the appellant that in view of the fact that the appellant's father had been granted exemption from vesting under the Private Forests (Vesting and Assignment) Act, 1971, for the purpose of cultivation, prohibition of cutting of trees in the land would affect the said right of the appellant Ext.P9 notification is bad in so far as it would affect his rights under the Kerala Private Forests (Vesting and Assignment) Act, 1971.


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