TOMY Vs. STATE OF KERALA

JUDGEMENT

(1.) Challenge in this proceeding is to Annexure-A, the Form-I report submitted by the Forest Range officer, Devikulam, Munnar Division (for short, the Range Officer") against petitioner and others to the extent it concerns offence under Section 27(1)(e)(iii) of the Kerala Forest Act (for short, "the Act"). According to the Range Officer, accused 1 to 3 who are in possession of Cardamom estates cut down trees from those estates with the assistance of accused 5 to 9 and the same were stored in the premises of petitioner, the 4th accused. The Range Officer inspected premises of petitioner on 17.05.2011, detected the offence and registered case as O.R. No.20 of 2011 for the offence aforesaid and under Sections 4, 5(2) and 9 of the Kerala Preservation of Trees Act, 1986 (for short, "the KPT Act"). According to the petitioner (4th accused) offence attributed to him and others under the Act cannot stand, if at all it came within the purview of the KPT Act since even according to the Range Officer trees were cut from the Cardamom estates of accused 1 to 3. Learned counsel contended that Sec. 5 of the KPT Act has over-riding effect over provisions of the Act. Learned counsel placed reliance on the decision of the Supreme Court in Bank of India v. Ketan Parakh & Others,2008 SCC 148. Learned counsel has also invited my attention to the Notification dated May 04, 1987 published in the Kerala Gazette on May 14, 1987 which according to the learned counsel supported his contention. Reliance is also placed on Annexure-B, Notification published in the Kerala Gazette on September 12, 1990.

(2.) Learned Public Prosecutor in response, contended that the Cardamom estates wherefrom trees were cut are 'Cardamom Reserve Hills' coming within the purview of the Act. According to the learned Public Prosecutor, Cardamom Reserve Hills are governed by Regulation 11 of 1068 and the Rules framed thereunder are saved by Sec. 85(3) of the Act.

(3.) The limited scope of this proceeding is to decide whether along with the offence attributed to the petitioner under provisions of the KPT Act, offence under Sec. 27(1)(e)(iii) of the Act also would stand. Section 27(1)(e)(iii) of the Act provides punishment for any person who, in a "Reserved Forest or in a law proposed to be constituted a Reserved Forest" cuts or fells any trees or girdles, marks, lops, taps, uproots, burns, saws, converts or removes any tree including fallen or felled, or strips off the bark or leaves from or otherwise damages the same. The said provision relates to a Reserved Forest or a land proposed to be a Reserve Forest. Section 3 of the Act gives power to the Government to constitute any land at the disposal of the Government a Reserved Forest in the manner provided in the Act. The words "land at the disposal of the Government" is defined in Sec. 2(g) as including all unoccupied land, all temporarily occupied land and all land occupied without permission, whether assessed or unassessed; but does not include land, the properties of land holders such as Jenmies, Devaswoms, or holders of Inam lands; also all holdings of land in any way subject to the payment of land revenue direct to Government and all registered holdings of land in propriety right. Section 4 of the Act provides that a Notification shall be issued by the Government whenever it is proposed to constitute any land a Reserved Forest. Section 6 of the Act empowers a Forest Settlement Officer to issue proclamation consequent to the Notification under Sec. 4 of the Act and invite objections in the matter. The Forest Settlement Officer has to conduct an enquiry under Sec. 8 of the Act and after such enquiry he has to pass an order Sec.10 of the Act admitting or rejecting claims made by the objectors regarding right of way, watercourse or to the use of water or right of pasture and right to forest produce. Any person aggrieved by the order of the Settlement Officer has a right of appeal under Sec.11 of the Act. The Settlement Officer has to report his decision to the Government under Sec.14 of the Act. The Government may under Sec. 15 of the Act admit or reject the claims referred above. Thereafter the Government has to issue Notification under Sec. 19 o the Act specifying the limits of the forests which it is intended to reserve and declaring the same to be reserved from a date to be fixed by such Notification. From the date so fixed, the forest shall be deemed to be a "Reserved Forest". It is relevant to note that the claims which the Settlement Officer is required to adjudicate under Sec.8 of the Act does not relate to cultivation of the land. Section 10 of the Act also does not mention about any right of cultivation in the land proposed to be declared as reserved forest. It is not disputed that so far as the cardamom estates are concerned, it is in the possession of the person to whom it is given for cultivation and so far as the leasehold right stands, he has the right to cultivate cardamom in the said land.