AUGUSTINE MATHEW Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition is filed to quash Annexure A and all proceedings thereon. As per Annexure A action is initiated against the petitioners for cutting and removing the teak trees from the residential compound of the petitioners. The petitioners became owner of the property on the basis of orders granted by the Government which are produced in this case. As per the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995, while assigning a land, the Government has the right to expressly reserve in the deed of grant regarding the fact that the trees standing on the land shall be the absolute property of the Government. So if there is a condition attached to the assignment order then irrespective of the factum of transfer of land by virtue of the limitation imposed the trees will not vest with the person who is given assignment of the property. Admittedly going through the documents in this case there is no such reservation clause and therefore the property is assigned in favour of the petitioners without reserving any right. So on that basis an action cannot be initiated.

(2.) The next question is whether the trees can be cut and removed without the permission of the Government. The Kerala Preservation of Trees Act, 1986 S.4 its proviso are applicable to such cases and as per the proviso to sub-s.(6) of S.4 that 'Notwithstanding anything contained in this section or in any judgment, decree or order of any Court, the owner of any land shall have the right to cut or cause to be cut any tree, other than a tree as defined in clause (e) of S.2, etc.' Sub-section (5) deals with a situation that nothing contained in sub-s.(1) or sub-s.(2) or sub-s.(3) or sub-s.(4) shall apply in respect of any tree or plant in the compound of any residential building. So if a tree is standing on the residential compound of a person and that a residential compound is not having an extent of more than one hectare then sub-s.(4) of the Act does not restrict any right to cut of such trees. Therefore under that provision also there cannot be a prosecution. The question with respect to the transport of the timber from the compound are all matters which are government by rules and it does not come up for consideration in this case. Therefore the prosecution will not lie and so the Annexure A proceeding initiated against the petitioners is quashed under S.482 of the Criminal Procedure Code, 1973.