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PETITIONER: STATE OF KERALA & ORS.

       Vs.

RESPONDENT: M.N. SANKARA NARAYANAN & ORS.

DATE OF JUDGMENT:       07/08/1996

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J)

CITATION:  JT 1996 (7)   462        1996 SCALE  (6)148

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      The  case  has  a  chequered  history  which  needs  no elaboration. Suffice  it to  state  that  under  the  Madras Private  Forests  Preservation  Act,  private  forests  were preserved. The  Legislature  of  the  Kerala  passed  Kerala Private Forests (Vesting and Assignment) Act 26 of 1971 (for short, the  ’Vesting Act’)  which came into force w.e.f. May 10, 1971.  The respondent  claimed 3,000  acres to  be not a private forest.  The Tribunal  declared  that  entire  3,000 acres were  not a  private forest. When an appeal came to be filed by  the appellant,  the Division  Bench of  the Kerala High Court  in MFA  No.152/1977 by  judgment dated September 19,  1980   had  accepted  the  report  submitted  by  three Commissioners, namely,  two advocates,  P.C. Chacko  and  N. Nandkumara Menon  and  John  M.  John,  Assistant  Director, Cardamom Board.      The report  dated February  26, 1979 Ex.X-4 declared as under:      "In  the   result,  the  appeal  is      allowed, the  order of  the  Forest      Tribunal  is   set  aside   and  we      declare that plots 2 and 3 as shown      In Ext.  X-5 plan having an area of      25 acres  in alone  not  a  private      forest within  the meaning  of that      expression as  defined in Act 26 of      1971. If  there is  a case  for any      recovery steps,  it is  open to the      appellant to  enforce the  bond  if      any, filed  by  the  respondent  in      obedience  to   the   order   dated      19.4.1977 in  IA  125/1977  of  the      Tribunal (Page  23 begins).  In the      nature of  this case the respondent

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    shall  pay   the   costs   of   the      appellants.      Thereunder, 25  acres marked  in  the  said  area  were declared  to   be  not   a  private  forest  since  cardamom operations were  being carried  on in  that area.  When  the respondents carried  the matter  in appeal  to this Court in M.N. Sankaranarayanan v. State of Kerala & Anr. [AIR 1987 SC 47] based  upon the  admission made  by the  State in  their counter affidavit  declared that  60 acres out of 3000 acres would be  the area  in which  the respondent was cultivating cardamom plantations and held that :      "We,  therefore,   find  that   the      appellant   is    entitled   to   a      declaration in respect of an extent      of  60   acres  of  land,  At  this      distance of  time no useful purpose      may be  served by  the case for the      purpose of identifying the 60 acres      of  land.   After  consulting   the      learned counsel  for the parties we      have arrived at the conclusion that      the appellant  is  entitled  to  an      area of  60 acres of his choice out      of 3000  acres claimed  by him. The      declaration in  respect of 60 acres      will  he   in   addition   to   the      declaration  granted  by  the  High      Court  in  respect  of  259  acres.      Subject to this slight modification      the appeal  is dismissed but in the      circumstances without costs.      It was accordingly held that the respondent is entitled to a  declaration in  respect of  an extent  or 60  acres of land; he  was given  liberty to  select any  60 acres out of 3000 acres  for his  retention and  had accordingly retained the  lands  in  question.  Legislature  has  passed  another enactment, viz.,  the Kerala Preservation of Trees Act, 1986 (Act 36  of 1986)  (for ’short, the ’Preservation Act) which came into  force w.e.f.  June 18,  1983. In  exercise of the said power  notification came  to be issued by the competent authority on  July 19, 1991 in which it is declared that the felling of  all the  available trees  would adversely affect soil erosion  and moisture  retention in  the area and cause destruction  and   loss  of  timber  wealth  in  the  State. Therefore, notification  was issued  prohibiting felling  of the trees  under Section 5 of the Preservation Act. The same came to be questioned in the High Court. The same came to be Judge in  the writ  petition and  the Division  Bench of the High Court  in the  impugned judgment dated March 9, 1994 in Writ Appeal  No.1505 of 1992 held that the 60 acres is not a private forest  within the  meaning of  the Vesting Act and, therefore, the  notification issued  under Section  5 of the Preservation Act is not valid in law. Thus this appeal.      Shri George,  learned counsel  appearing for the State, contended that  in view  of the  peculiar situation  in this case, the  notification is  perfectly valid in law since the object of  the Preservation  Act is  to sustain  the  forest growth and  the land  in question  was a forest land. It was declared to  be not  a forest  area in view of the admission made  in  the  counter-affidavit  that  the  respondent  was cultivating cardamom  plantation in that area. The admission made by  the respondent that he had permitted 4th respondent to cut and carry the trees therefrom would clearly show that they are  the forest trees defined under Section 2(e) of the Preservation Act  and, therefore,  felling of  trees  is  in

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violation of  the Preservation  Act. Shri  Sudhi  Vasudevan, Learned counsel  for the respondents, contended that in view of the  fact that 60 acres of the land is declared to be not a private  forest  and  in  view  of  the  language  in  the Preservation Act  that unless  it is  a  private  forest  as defined under  the Vesting  Act, the Preservation Act has no application and,  therefore,  the  notification  is  clearly illegal.      In view  of the  diverse contentions, the question that arises for  consideration is:  whether the view taken by the High Court  is correct  in law?  It is  seen that  there are peculiar facts  in this  case. While the appeal in the first stage was  pending in  the High  Court, a  Commission of two advocates  and   an  expert   officer,  Assistant  Director, Cardamom Board  came to  be appointed  by the  High Court to inspect the  area and  submit the  report. The  report would clearly establish  that finding  was not upset by this Court on the  earlier occasion and it would show that 25 acres was found to be cultivated with cardamom plantation. The rest of the area  was found  to be  a forest  area. Consequently, it became a  private forest.  A declaration  to that effect was given by the Division Bench. But, when the appeal came to be filed in view of the admission made by the respondent in the counter  affidavit   that  the  respondent  was  cultivating cardamom plantation in an extent of 60 acres of the land, by virtue  of   exclusion  of   cardamom  plantation  from  the operation of  the private forest under the Vesting Act, this Court declared  to that  effect and  held it  to  be  not  a private forest. But, instead of relegating the matter to the High Court  for further  identification of  actual  existing area, permission  was given to the respondents to select any area of  60 acres  out of  3000 acres for the purpose of his retention. Consequently,  he selected  60 acres of the land. It is  not in dispute that out of 25 acres of the land found to be  under use  for cardamom  plantation by the High Court and in  addition thereto  any other 35 acres of land had not been retained. Instead, the land the respondent had retained a compact  block of 60 acres of his choice. Consequently, by operation of the judgment of this Court, 60 acres came to be declared to  be not  a private  forest, Yet,  in fact, there exist forest  growth in 60 acres of land. The admission made by the  respondents was  that they  have permitted by way of sale, third  parties to  cut and  carry the  trees. It would appear that there are valuable trees in the 60 acres of land as admitted before us. The object of the Preservation Act is to preserve forestation and not de-forestation.      Consequently,   though   notification   was   published prohibiting the  respondents from  felling the trees; in the circumstances, we  are of  the view  that  the  notification should  be   suitably  modified   as  under.  The  competent authority is  directed to give permission to the respondents to fell  such of  the trees  which are  not referred  to  in Section 2(e)  of the Preservation Act and if other trees are not of such value, then necessary permission may be given to the respondents  to fell  the trees  so as  to enable him to cultivate  cardamom   plantation  or  and  other  plantation operations permissible  under the  law so  that  respondents would enjoy  60 acres  of the land, the benefit flowing from the earlier  judgment. We  hold that  this  direction  would ensue compliance  of the  Preservation Act  and at  the same time the right given to the respondents to enjoy 60 acres of land would be sustained.      It  would  be  open  to  the  respondents  to  make  an application to  the  competent  authority.  On  making  such application, the  competent authority,  with  prior  notice,

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would inspect  the area  in presence  of the respondents and any of  the persons  on their  behalf and determine which of the trees  coming under  the  definition  of  "trees"  under Section 2  [e] of  Preservation Act  should be preserved and which of  the trees  should be  permitted to  be felled  and carried away.  If any difficulty arises in implementation of this order,  it would be open to the parties to approach the High Court  and  seek  further  direction  in  this  behalf, Thereafter,  the  State  Government  is  directed  to  issue modified notification in terms of Section 5 of the Act.      The appeal  is accordingly  disposed of in terms of the above direction. No costs.