Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. Despite the declaration, an attempt was made by the Government as per Notification dated 08.07.1977 notifying that certain land out of the 23.33 acres would vest in the Government. That was challenged by the 1st Respondent in Original Petition No. 6867/1991 leading to Annexure R1- C Judgment dated 15.03.2000. That Notification was quashed.
13. Both Annexure P1-Judgment in M.F.A. No. 163/1977 and Original Petition No. 6867/1991 have become final.
14. While restoring the land, a Notification under Section D 5 dated 09.01.2001 of the Preservation of Trees Act was also issued prohibiting total felling of trees in the area. That was challenged by the respondent in Original Petition No. 325212003 before the High Court which was disposed of by a Division Bench of the Court as per the impugned Judgment dated E 31.03.2006. The High Court has taken the view that: "There is a clear finding by the Division Bench in M.F.A. No. 163 of 1977 that 23.33 acres of land would be outside the purview of the vesting and therefore only those land which falls within the definition of the Vesting Act. 1971 would fall within sub-section (1) of Section 5 of the Kera la Preservation of Trees Act. In such circumstances, we are of the view. Notification Ext.P2 issued by the Government cannot be sustained so far as plots VFC 130, 132 and 134 of Kumaranallor Village, Kozhikode taluk owned by the petitioner are concerned." (Emphasis supplied)
15. Special Leave Petition (C) No. 1380/2007 arises from H the Judgment of the Division Bench of the High Court dated STATE OF KERALA v. ABDUL ALI [KURIAN, J.] 07.03.2006 in Writ appeal No. 1449/2003. In that case also, the Division Bench has taken the view that land covered by notification issued under Section 5 of the Preservation of Trees Act was not a private forest or a cardamom plantation and, hence, it is impermissible for the State to issue a notification under Section 5.
16. Special Leave Petition (C) No. 26236/2008 arises from Judgment dated 19.01.2007 and the High Court followed the impugned Judgment in Special Leave Petition (C) No. 13802/2006.
17. On behalf of the State of Kerala, it is contended that the Kerala Preservation of Trees Act has to be purposively interpreted. A notification issued under Section 5 of the Act for prohibiting the destruction of trees has an overriding effect on c all other enactments, judgments, decrees, etc. Still further, it is contended that Section 5 is applicable to all the private forests as they stood before 10.05.1971.
18. Learned counsel appearing for the Respondents contented that the State is not justified in raking up such issues before this Court since those had already attained finality before the High Court in other proceedings. It is submitted that a notification under Section 5 for total prohibition of destruction of all species of trees can be issued only in respect of private forest or cardamom hills reserve or an area cultivated with cardamom.
19. In the cases before us, there is no case for the State that the disputed lands are part of the cardamom hills reserve or there is any cardamom cultivation. Thus, the question is whether the land is a private forest or not.
20. Explanation II under Section 5 of the Preservation of Trees Act is a piece of legislation by reference. The definition of "private foresr under the Vesting and Assignment Act is to A be taken for private forest under Section 5 of the Preservation of Trees Act.
21. Section 2(f) of the Vesting and Assignment Act has defined "private forest" to mean 'any land coming under the purview of The Madras Preservation of Private Forests Act, 1949; any forest not owned by the Government and not covered by The Madras Preservation of Private Forests Act, 1949; and any remaining forest area not owned by Government including waste lands which are enclaves within wooded areas'.
22. However, there are four exclusions under Section 2(f)(1 )(i) of the Act and they are: – (1) The lands which are gardens or nilams as defined in the Kerala Land Reforms Act, 1963. (2) Lands which are principally cultivating tea, coffee, cocoa, rubber, cardamom or cinnamon and lands used for ancillary purposes to such cultivation and for preparation of the products for market. (3) Lands which are principally cultivated with cashed or other fruit bearing trees or any other agricultural crop and (4) Building sites and lands appurtenant for convenient enjoyment of such buildings.
23. It is not in dispute that the disputed lands in all these three cases were in the erstwhile Malabar district referred to in sub-section (2) of Section 5 of The State Reorganization Act, 1956 where The Madras Preservation of Private Forests Act, G 1949 (hereinafter referred to as The Madras Preservation of Private Forests Act') was applicable. The said legislation was enacted in 1949 in order to: "prevent the indiscriminate destruction of private forests STATE OF KERALA v. ABDUL ALI [KURIAN, J.] and interference with customary and prescriptive rights therein and for certain other purposes."
24. Section 1 (2) of the Act provides for the application of the Act, which, to the extent relevant, reads as follows: "1 (2) It applies – (i) to private forests in the districts of Malabar and South Kanara having a contiguous area exceeding 100 acres."
25. In all the three cases before us, the stand of the State c before the Forest Tribunal and otherwise on facts also is that The Madras Preservation of Private Forests Act, 1949 was applicable in these cases since the forests had a contiguous area exceeding 100 acres. Therefore, indisputably, The Madras Preservation of Private Forests Act, 1949 was applicable in these cases. However, Vesting and Assessment Act, 1971 has excluded certain lands from the purview of definition of "private foresr under Section 2(f)(1 )(i) of the Act. In all the three cases, the finding on the exclusion has attained finality also. The contention on behalf of the State that despite such exclusion, The Madras Preservation of Private Forests Act, 1949 is applicable to any forest not owned by the Government including waste lands, in terms of Section 2(f)(1)(ii) of the Act, we are afraid that the contention cannot be appreciated. Three pre- conditions are required for bringing a forest under the purview of Section 2(f)(1)(ii): – (i) It must be a forest, (ii) It is not owned by the Government and (iii) It must be a forest to which The Madras Preservation of Private Forests Act, 1949 is not applicable. All these are to be read cumulatively. Though there are SUPREME COLI.RT REPORTS [2013) 5 S.C.R. A disputes on facts as to the nature of the growth, we will assume for a moment that the disputed land is a forest coming within the purview of definition of "forest" made by this Court in T.N. Godavarman Thirumulkpad vs. Union of India and others. 1 Even then, the requirements of the Statute will not be met. B Though the forest is not owned by the Government, it is a case where, it is not disputed also, The Madras Preservation of Private Forests Act, 1949 is applicable, being private forest in the district of Malabar having contiguous area exceeding 100 acres. Thus, it is clear that the disputed lands in these cases c have expressly been excluded from the purview of private forest and that it is not otherwise covered by the said definition under Section 2(f)(1) of the Vesting. and Assignment Act, 1971.
26. The prohibition of cutting of trees in notified areas under Section 5 of The Kerala Preservation of Trees Act, 1986 D would be permissible only if the land is either a private forest or a part of cardamom hills reserve or the land is cultivated with cardamom or if it is forest not owned by Government and not covered by The Madras Preservation of Private Forests Act, 1949. As already noted by us here above, there is no case for E the Respondents that it is part of cardamom hills reserve or that the land is cultivated with cardamom. The only dispute is with regard to the classification of the land as private forest. Since the area has been expressly excluded from the purview of private forest as defined under the provisions of The Kerala F Preservation of Trees Act, 1986 and since it is not covered by Section 2(f)(1)(ii) of the Vesting and Assignment Act, the Government cannot notify the area for the purpose of total prohibition of trees under Section 5 of The Kerala Preservation of Trees Act, 1986.
27. However, we may incidentally make a reference to the regulatory provision under the Preservation of Trees Act. While Section 5 provides for total prohibition of cutting of any species of trees, Section 4 is only a regulatory provision restricting the H 1. (1997) 2 sec 267. STATE OF KERALA v. ABDUL ALI [KURIAN, J.] destruction of trees specified under Section 2(e) of the Act. We make it clear that merely because the lands of the Respondents are being taken out of the purview of Section 5 that does not mean that they will also be outside the purview of Section 4. In other words, as far as those trees specified under Section 2(e) are concerned, they will still be governed by the restrictions imposed under Section 4 of the Act. No such tree or its branch shall be cut without previous permission in writing of the authorized officer and the permission shall only be in the contingencies provided for under sub-section (2), viz.: (a) the tree constitutes a danger to life or property; or C (b) the tree is dead, diseased or windfallen; or (c) the timber is only to enable the owner of the land for construction of a building for his own use. o
28. Subject to the above observations, the Special Leave Petitions are dismissed.
29. There is no order as to costs. K.K.T. SLPs disposed of.