STATE OF KERALA, Vs. ANTONY KANNATTU

JUDGEMENT

(1.) The State impugn the judgment of the learned Single Judge, which found that Exhibit P1 judgment, with respect to the very same property, which is the subject matter in this case, held that the same is not a private forest and that the provisions of Section 5 of the Kerala Preservation of Trees Act, 1986 (for brevity, hereinafter referred to as "the Trees Act") cannot be applied to the property. Exhibit P8 notification issued under the Trees Act was, thus, quashed and the turning down of the writ petitioner's request to take the property out of the ambit of the Trees Act, Exhibit P12 was set aside.

(2.) The learned Special Government Pleader (Forests) contend before us that Exhibit P1 never found that the respondent's property is a private forest, but in fact found that it is eligible for exemption under Section 3(3) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (for brevity, hereinafter referred to as "the Vesting Act"). It is the further argument of the appellants that the respondent having been granted exemption under Section 3(3) of the Vesting Act, the Trees Act would apply, since the Trees Act would have an overriding effect on the provisions of the Vesting Act, as has been held by a Division Bench of this Court in Joseph v. State of Kerala, 2005 4 KerLT 504. The said decision, as also the decision in Balakrishnan Nair v. Government of Kerala, 2005 2 KerLT 485, has been relied on to contend that any 'tree' would be covered under the notification issued under the Trees Act. In such circumstance, it is the contention of the learned Special Government Pleader that though restoration was ordered as per Exhibit P1 judgment, the competent authority under the Trees Act was perfectly justified in issuing Exhibit P8 notification.

(3.) The manner in which the possession of 12.16 acres of land in Tharur Village of Alathur Taluk in Palakkad District was restored to the respondent is detailed in the judgment of the learned Single Judge. Suffice it to say that by Exhibit P1, a Miscellaneous First Appeal filed against the order of the Forest Tribunal, Palakkad by the respondent herein was allowed, by virtue of which the subject lands were restored to the respondent. The challenge in the said first appeal was against the findings of the Tribunal that the property was not entitled to be cultivated and as such the exemption under Section 3 (3) of the Vesting Act was not available to the respondent herein. It was the contention of the respondent before the Division Bench that there were three other cases similar to that of the respondent, in which the entitlement for exemption under Section 3(3) of the Vesting Act was found in favour of the parties in possession. Though in one of the cases the finding of the Forest Tribunal itself had become final by reason of the State not filing any appeal, in another the State had filed an appeal, which was dismissed as per judgment dated 26.08.1986 in M.F.A.No.569 of 1981. Still another order of the Forest Tribunal declining exemption to certain extents of lands was challenged by the applicant before this Court in M.F.A.No.648 of 1988, which again stood allowed by judgment dated 29.07.1994.