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2002 DIGILAW 510 (KER)

Sabaridas v. State of Kerala

2002-07-26

K.A.ABDUL GAFOOR

body2002
Judgment :- The petitioner has approached this court challenging Ext. P6. It is a notification issued in terms of Section 5 of Kerala Preservation of trees Act 1986 directing that no tree standing in the area specified in the Schedule shall be cut, uprooted, burnt or otherwise destroyed except the trees constituting danger to life or property or the tree is dead, deceased or wind fallen. The property scheduled is about 8.26 acres of land in extent in survey Nos. 166/2, 164/1 and 166/6A of Ongallur village in Ottappalam Taluk. 2. The petitioner submits that Ext. P6 issued on the ground that the property in question is covered by the order of the Forest Tribunal, Palakkad which has been confirmed by this court in Ext. P4 judgment in M.F.A. 101/1978. A review petition was also filed as is revealed from Ext.P5. There is a clear finding in Ext.P4 judgment which reads as follows: “In Ext. A1 document specific mention is made about the earlier document. PW1 has deposed that the property is bounded on all sides with fence. We find that the property was not forest at the relevant time.” The property covered by the order in O.A. 1284/74, Ext.P3 is the same as scheduled to the impugned notification, Ext.P6. Therefore, the property mentioned in schedule to Ext.P6 was already found to be not forest land. Government is bound by that finding. 3. Under Sec.5 of the Kerala Preservation of Trees Act Government is vested with a power to issue notification with a view to preserve tree growth in private forest area in cardamom hills or in other area cultivated with cardamom, by notification in the gazette. There is a clear finding by this court, as extracted above, about the property in question that it is not forest land. The Government does not have a case that the land in question is cardamom hills or cultivated with cardamom. So the power to the Government in terms of Sec.5 cannot be extended this land. The Government is bound is bound by a finding in Ext.P4 judgment of this court. That finding was entered into dismissing an appeal filled by the Government. The review petition was also dismissed as is revealed by Ext.P5. Thus the finding that property in question does not form part of forest confirmed by Ext.P5. The Government is bound is bound by a finding in Ext.P4 judgment of this court. That finding was entered into dismissing an appeal filled by the Government. The review petition was also dismissed as is revealed by Ext.P5. Thus the finding that property in question does not form part of forest confirmed by Ext.P5. There is no contention by the Government that it is a cardamom hill or it is cultivated by cardamom. So in respect of land scheduled to Ext.P6, the Government cannot issue a notification in terms of Sec. 5. 4. There is no counter affidavit in this O.P. by the Government. Only a vague statement is filed with only three sentences in that statement. It is not known why a detailed counter affidavit has not filed in this case with respect to the nature of the properties covered by Ext.P6. In the absence of such details this court has no other way except to set aside Ext.P6. Accordingly Ext.P6 is quashed and O.P. is allowed. 5. There is yet another grievance in the original petition that inspite of Ext.P4 judgment of this court and dismissal of review petition as per Ext.P5 dated 11-10-1991 the property in question is not so far restored to the petitioner. Nothing is stated on behalf of Government resisting such prayer. Therefore, There shall be a direction to the 2nd respondent to restore the property covered by Ext.P3 within six months.