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2013 DIGILAW 510 (KER)

Manoj v. State of Kerala

2013-06-20

A.M.SHAFFIQUE

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JUDGMENT : A.M. Shaffique, J. 1. Petitioner challenges Ext. P8 an order passed by the Divisional Forest Officer, rejecting the petitioner's request for cutting and removing rosewood trees in the land assigned to him by the Government on the ground that as per Condition No. 1 of the patta, the full right of all the trees vests in the Government which are also subsequently found in the property. The facts as disclosed would show that the petitioner's father was assigned an extent of 3 acres 35 cents of land as per Ext. P1 patta. By virtue of partition, it is said that this property was allotted in the name of the petitioner. There were four rose wood trees in the property of which two were in a dangerous situation and the other two were cut and removed to raise funds for repayment of the liabilities of the petitioner. He made a request to the 4th respondent Tahsildar seeking permission to cut and remove the said four rosewood trees. The 4th respondent by Ext. P6 reported about the nature of the trees standing in the property and opined that the said trees had not been reserved. The matter was therefore, placed before the Forest Range Officer, Adimali. Ext. P7 is the report by the Section Forester to the Range Officer. After verification of the same he stated that the four rosewood trees are not reserved and the matter was placed before the Division Forest Officer, who thereafter passed Ext. P8 order. 2. It is the contention of the petitioner that the reasons stated in Ext. P8 is absolutely baseless. There is no reference to any reservation of trees in Ext. P1 as the Schedule would show that there were no teak, black wood, ebony or sandalwood trees in the land at the time of assignment. According to petitioner, condition No. 1 of Ext. P1 pattayam cannot be relied upon to contend that the trees that subsequently came into existence also would be reserved. That apart, even though there is such a provision in the condition, on the enactment of the Kerala Promotion of Tree Growth in Non Forest Areas Act, 2005 (hereinafter referred as the 'KPTG Act'), the conditions may not have any relevance and the provisions of the said Act will have to be followed for the purpose of cutting and removing four rosewood trees from the property. 3. 3. Counter affidavit is filed by the second respondent supporting the stand taken in Ext. P8 order. It is stated that in so far as Ext. P8 is issued on the basis of condition No. 1 of the Pattayam, petitioner cannot claim any better rights. 4. Heard learned counsel for the petitioner and the learned Special Government Pleader. 5. The first question to be considered is whether the petitioner is entitled to return the rosewood trees in the property in terms of Ext. P1 patta. The revenue authorities have in their report opined that none of the trees were reserved in Ext. P1 patta and therefore the matter was referred to the forest authorities. Condition No. 1 in Ext. P1 patta reads as under: 1. The full right over all the trees within the grant and specified in Schedule vests in the Government and the assignee is bound to take care of all such trees standing on the land at the time of assignment or that may come into existence subsequent to it. 6. The Schedule in Ext. P1 patta describes four types of trees viz., teak, black wood, ebony and sandalwood. But it is stated in the particulars as "Nil". Apparently, at the time of grant there were no such trees in the property. The contention of the petitioners is that condition No. 1 in the patta only relates to those trees which were in existence at the time of grant and not in respect of trees that had come into existence subsequent to the date of grant. The learned Special Government Pleader however refers to an unreported judgment of this Court in W.P.C. No. 804 of 2006 of the learned Single Judge of this Court to highlight the fact that a similar clause had been considered by this Court. That was the case in which the petitioner is a subsequent purchaser of the land which was obtained by way of assignment under the Kerala Government Land Assignment Act (hereinafter referred to as 'the KLA Act'). When the petitioner requested for cutting and removing a fallen tree and requested for transit pass, the same came to be rejected on the ground that the area comes under Thodupuzha reserve forest. It was contended before this Court that the tree was in existence at the time of grant itself. When the petitioner requested for cutting and removing a fallen tree and requested for transit pass, the same came to be rejected on the ground that the area comes under Thodupuzha reserve forest. It was contended before this Court that the tree was in existence at the time of grant itself. This Court considered condition No. 1 in the absence of the patta and opined that the same conditions would apply to the grant as well. This Court found that though the conditions are not happily worded, the purport of the conditions is that if the trees are one of the species mentioned in the Schedule whether the trees were standing on the land at the time of assignment or came into existence subsequent to the assignment, the tree would belong to the Government. If the view as expressed in W.P.C. No. 804/2006 is taken, subsequently grown trees in the property also belongs to the Government if it is in the same species as that described in the schedule. 7. On the other hand, the learned counsel for the petitioner submits that the judgment has no application especially in the light of the provisions of the K.L.A. Act and the subsequent K.P.T.G. Act. The provision relied upon is R. 9(2) of the Kerala Land Assignment Rules which reads as under: 9. (2) In cases where registry is made, patta shall be issued in the form in Appendix II to these rules. Where such patta is issued pending survey and demarcation, a note to the effect that the area noted in the patta is subject to revision after finalisation of the survey and demarcation shall be made in the patta. In such cases, when survey and demarcation is completed, the exact area assigned shall be noted in the patta by the assigning authority. Reference is made to R. 10(3) which reads as under: 10(3): The assignee shall also be liable to pay the value of the trees, plants and [vines] if any, specified in Parts A and B of Appendix III to these rules standing on the land at the time of assignment at such rates as may by order, be specified by Government and subject to the following conditions:- (a) No value shall be charged in respect of trees the girth of which is 90 cm or less at breast height. 8. 8. In so far as the Schedule to the patta does not make any difference, it has to be assumed that the petitioner had paid the value for the entire trees or that there were no trees in the property. That apart, it is also indicated that as per the amendment which has come into effect on 9.7.1970 with reference to sub-rule 3(a), no value shall be charged in respect of trees with 90 cms. or less at breast height. Relying upon these provisions, it is argued that condition No. 1 in the patta will not apply to the petitioner. 9. But it could be seen that when a meaning is assigned to the words "or that may come into existence subsequent to it", which is also a condition incorporated in Appendix II, which is the format of patta, a different view cannot be taken other than to say that condition No. 1 applies to such trees standing on the land at the time of assignment and as shown in the Schedule or that may come into existence subsequent to it with reference to the trees specified in the Schedule. In other words, I fully agree with the opinion expressed by the learned Single Judge in W.P.C. No. 804/2006. When patta is granted under K.L.A. Act and the Rules it can be treated only subject to the terms of the grant. If the patta clearly indicates a condition, without any restriction whatsoever, despite the fact that subsequently certain amendments were incorporated in the K.L.A. Act or Rules, in the absence of any provision which enables cancellation of the conditions in the patta, I cannot agree with the learned counsel to say that condition No. 1 does not apply at all. 10. Another contention urged by the learned counsel for the petitioner is based on S. 6 of the KPTG Act which reads as under: 6. 10. Another contention urged by the learned counsel for the petitioner is based on S. 6 of the KPTG Act which reads as under: 6. Right of owners to cut and remove trees in non-notified areas in non-forest land.-- (1) Notwithstanding anything contained in any other law for the time being in force and subject to the other provisions of this Act, every owner of non-forest land in a non-notified area shall have the right to cut and transport any tree, other than sandalwood tree, standing on his land: Provided that the provision of this sub-section shall not apply to trees, if any, reserved by the Government at the time of assignment of such land or trees standing on any land notified u/s 5 of the Kerala Preservation of Trees Act, 1986 (35 of 1986) or the areas notified by the Custodian under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (21 of 2005). 11. Apparently sub-section (1) clearly indicates that notwithstanding anything contained in any other law for the time being in force every owner of non-forest land in a non-notified area shall have the right to cut and transport any tree, other than sandal wood tree, standing on his land. Therefore the only restriction is to cut and remove sandal wood tree going by sub-section (1). But the proviso to sub-section 1 indicates that sub-section (1) will not apply if any trees are reserved by the Government at the time of assignment of such land. First of all, the non obstante clause in S. 6(1) does not exclude the terms of the grant of patta issued by the Government under the K.L.A. Act or the Rules framed thereunder. The non obstante clause apply in respect of any other law for the time being in force. Therefore the condition mentioned in Ext. P1 patta will have its own force, which according to me is the condition for assignment. Its validity has to be considered in terms of S. 8 of the K.L.A. Act which inter alia states that agreement has to be considered in its tenure. In so far as the grant has not reserved any trees, proviso will not apply. But as I have already indicated the non obstante clause under sub-section (1) does not apparently include the terms of the patta. 12. In so far as the grant has not reserved any trees, proviso will not apply. But as I have already indicated the non obstante clause under sub-section (1) does not apparently include the terms of the patta. 12. The learned Government Pleader however contended that if at all a person has to cut and remove rose wood from the property he will have to comply with sub-section (5) of S. 6 of the KPTG Act, for the purpose of obtaining a transport pass which reads as under: 6(5): Right of owners to cut and remove trees in non-notified areas in non-forest land.-Where a specified tree is to be cut or any timber of a specified tree is to be transported from any non-forest land to any other place, the owner of such tree shall, before cutting the tree or transporting the timber, as the case may be, file before the Authorised Officer having jurisdiction over the area, a declaration containing details such as the survey number of the land from which the tree is to be cut, number of trees, species of trees, quantity of timber and the place to which such timber is being transported, either directly or send it by registered post with acknowledgment due. 13. Apparently sub-section (5) applies only in respect of specified trees to be transported from any non-forest land to any other place only relates to obtaining a transport pass and nothing else. The restriction therefore imposed under the KPTG Act is for cutting and removing sandal wood trees which is clearly prohibited. In respect of specified trees, necessary transport pass is required. 14. Therefore, as far as the petitioner is concerned, he is faced with two situations. One is the restriction imposed in Ext. P1 patta which gives the Government all rights in respect of trees named in the Schedule that is teak, black wood, ebony, sandal wood, that may come into existence subsequent to the date of grant and secondly if he wants to cut and remove he has to obtain a pass in terms of S. 6(5) of the K.P.T.G. Act. As I have already held that the petitioner is unable to cut and remove rose wood trees which is the same as black wood trees and the Government alone has the absolute power. The petitioner will have to approach the Government to vary the said conditions. As I have already held that the petitioner is unable to cut and remove rose wood trees which is the same as black wood trees and the Government alone has the absolute power. The petitioner will have to approach the Government to vary the said conditions. Under these circumstances, I am of the view that the petitioner is not entitled for any relief and hence the Writ Petition is dismissed. However, I make it clear that the dismissal of this Writ Petition shall not preclude the petitioner from approaching the Government to seek permission to cut and remove the said rose wood trees by seeking modification of condition No. 1 of Ext. P1 patta.