STATE OF KERALA AND ORS.versusM.N. SANKARA NARAYANAN AND ORS.

                      STATE OF KERALA AND ORS.                                    A
                                       v.
                M.N. SANKARA NARAYANAN AND ORS.

                              AUGUST 7, 1996

              [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]                              B

      Kera/a Prcse1vatio11 of Trees Act, 1986/Kerala P1ivate Forests (Vesting
a11d Assig11me11t) Act, 1971:

       Ss.2(e) 512(!), 8-Prese1vatio11 of forests a11d prohibitio11 011 cutti11g of C
trees-By operatio11 of Judgme11t of this Cowt 60 acres of la11d was declared
with the respo11de11ts as 1101 a p1ivate forest a11d said to have bee11 used as
cardamom pla11tatio11-Howevcr in fact there exists forest growth with value-
ab/c trees i11 the said 60 acres of land-Notification was published prohibiting
the respondents from felling the trees-Held, competent authmity would give
pennission to respondents to fell such of trees which are not refeJTed to in D
s.2(e) so as to enable him to cultivate cardamom plantation or any other
plantation OJJerations pennissib/e under the law-17iis direction would ensue
conzpliance of the Act and al the sanie tbne the right given to the respondents
to enjoy 60 acres of land would be sustained-State Govemment would issue
modified notification in tenns of s.5.                                            E
      M.N. Sankaranarayanan v. State of Kera/a and Anr., AIR (1987) SC
47, referred to.

         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10656 of
·~                                                                                F
     From the Judgment and Order dated 9.3.94 of the Kerala High Court
in W.A. No. 1505 of 1992.

         M.T. George for the Appellants.
                                                                                  G
         A. Sudhi Vasudevan, M.P. Vinod and G. Prakash for the Respon-
dents.

         The following Order of the Court was delivered :

         Leave granted.                                                           H
                                      363
    364                  SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A         We have heard learned counsel on both sides.

           The case has a chequered history which needs no elaboration. Suffice
    it to state that under the Madras Private Forests Preservation Act, private
    forests were preserved. The Legislature of the Kerala passed Kerala
    Private Forests (Vesting the Assignment) Act 26 of 1971 (for short, the
B   'Vesting Act') which came into force w.e.f. May 10, 1971. The respondent
    claimed 3,000 acres to be not a private forest. The Tribunal declared that
    entire 3,000 acres not a private forest. When an appeal came to be filed by
    the appellant, the Division Bench of the Kerala High Court in MFA No.
    152/1977 by judgment dated September 19,1980 had accepted the report
c   submitted by three Commissioner, namely, two advocates, P.C. Chacko and
    N. Nandkumara Menon and John M. John, Assistant Director, Cardamom
    Board.

          The report dated February 26, 1979 Ex. X-4 declared as under :

D           "In the result, the appeal is allowed, the order of the Forest
            Tribunal is set aside and we declare that plots 2 and 3 as shown
            In Ext.X-5 plan having an area of 25 acres in alone not a private
            forest within the meaning of that expression as defined in Act 26
            of 1971. If there is a case for any recovery steps, it is open to the
            appellant lo enforce the bond, if any, filed by the respondent in
E
            obedience to the order dated 19.4.1977 in 1A 125/1977 of the
            Tribunal (Page 23 begins). In the nature of this case the respondent
            shall pay the costs of the appellants ..

          Thereunder, 25 acres marked in the said area were declared to be
F   not a private forest since ca~damom operations were being carried on in
    that area. When the respondents carried the matter in appeal to this Court,
    this Court in M.N. Sa11kara11arayanan v. State of Kera/a & Anr., AIR 1987
    SC 47 based upon the admission made by the State in their counter affidavit
    declared that 60 acres out of 3000 acres would be the area in which the
G   respondent was cultivating cardamom plantations and held that :

             "We, therefore, find that the appellant is entitled to a declaration
             in respect of an extent of 60 acres of land. At this distance of time
             no useful purpose may be served by amending the case for the
             purpose of identifying the 60 acres of land. After consulting the
H            learned counsel for the parties we have arrived at the conclusion
                  STATEv. M.N.SANKARANARAYANAN                              365

          that the appellant is entitled to an area of 60 acres of his choice A
         out of 3000 acres claimed by him. The declaration in respect of 60
         acres will be in substitution of and not in addition to the declaration
         granted by the High Court in respect of 259 acres. Subject to this
         slight modification the appeal is dismissed but in the circumstances
         \vithout costs. 11
                                                                                   B
        It was accordingly held that the respondent is entitled to a declara-
tion in respect of an extent of 60 acres of land; he was given liberty to select
any 60 acres out of 3000 acres for his retention and had accordingly
retained the lands in question. Legislature has passed another enactment,
viz., the Kerala Preservation of Trees Act, 1986 (Act 36 of 1986) (for short,      c
the 'Preservation Act) which came into force w.e.f. June 18, 1983. In
exercise of the said power notification came to be issued by the competent
authority on July 19, 1991 in which it is declared that the felling of a!l the
available trees would adversely affect soil erosion and moisture retention
in the area and cause destruction and loss of timber wealth in the State.          D
Therefore, notification was issued prohibiting felling of the trees under
Section 5 of the Preservation Act. The same to be questioned in the High
Court. The learned Single Judge in the writ petition and the Division Bench
of the High Court in the impugned judgment dated March 9, 1994 in Writ
Appeal No. 1505 of 1992 held that the 60 acres is not a private forest within
the meaning of the Vesting Act and therefore, the notification issued under        E
Section 5 of the Preservation Act is not valid in law. Thus this appeal.

       Shri George, learned counsel appearing for the State, contended that
in view of the peculiar situation in this case, the notification is perfectly
valid in law since the object of the Preservation Act is lo sustain the forest     F
growth and the land in question was a forest land. It was declared to be
not a forest area in view of the admission made in the counter-affidavit that
the respondent was cultivating cardamom plantation in the area. The
admission made by the respondent that he had permitted 4th respondent
to cut and carry the trees therefrom would clearly show that they are the
forest trees defined under Section 2(e) of the Preservation Act and,               G
therefore, felling of trees is in violation of the Preservation Act. Shri Sudhi
Vasudevan, learned counsel for the respondents, contended that in view of
the fact that 60 acres of the land is declared to be not a private forest and
in view of the language in the Preservation Act that unless it is a private
forest as defined under the Vesting Act, the Preservation Act has no               H
    366                   SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A application and, therefore, the notification is clearly illegal.

            In view of the diverse contentions, the question that arises for con-
    sideration is whether the view taken by the High Court is correct in law?
    It is seen that there are peculiar facts in this case. While the appeal in the
B   first stage was pending in the High Court, a Commission of two advocates
    and an expert officer, Assistant Director, Cardamom Board came to be
    appointed by the High Court to inspect the area and submit the report.
    The report would clearly establish that finding was not upset by this Court
    on the earlier occasion and it would shew that 25 acres was found to be
    cultivated with cardamom plantation. The rest of the area was found to be
c   a forest area. Consequently, it became a private forest. A declaration to
    that effect was given by the Division Bench. But, when the appeal came to
    be filed in view of the admission made by the respondent in the counter-
    affidavit that the respondent was cultivating cardamom plantation in an
    extent of 60 acres of the land, by virtue of exciusion of cardamom planta-
D   tion from the operation of the private forest under the Vesting Act, this
    Court declared to the effect and held it to be not a private forest. But,
    instead of relegating the matter to the High Court for further identification
    of actual existing area, permission was given to the respondent to select
    any area of 60 acres out of 3000 acres for the purpose of his retention.
    Consequently, he selected 60 acres of the land. It is not in dispute that out
E   25 acres of the land found to be under use for cardamom plantation by the
    High Court and in addition thereto any other 35 acres of land had not been
    retained. Instead, the land the respondent had retained a compact block
    of 60 acres of his choice. Consequently, by operation of the judgment of
    this Court, 60 acres came to be declared to be not a private forest. Yet, in
F   fact, there exist forest growth in 60 acres of land. The admission made by
    the respondents was that they have permitted by way of sale, third parties
    to cut and carry the trees. It would appear that there are valuable trees in
    the 60 acres of land as admitted before us. The object of the Preservation
     Act is to preserve forestation and not de-forestation. Consequently, though
     notification was published prohibiting the respondents from felling the
G trees; in the circumstances, we are of the view that the notification should
  be suitably modified as under. The competent authority is directed to give
  permission to the respondents to fell such of the trees which are not
  referred to in Section 2( e) of the Preservation Act and if other trees are
  not of such value, then necessary permission may be given to the respon-
H dents to fell the trees so as to enable him to cultivate cardamom plantation
                 SfAIB v. M.N. SANKARA NARAYANAN                       367

or any other plantation operations permissible under the law so that          A
respondents would enjoy 60 acres of the land, the benefit flowing from the
earlier judgment. We hold that this direction would, ensue compliance of
the Preservation Act and at the same time the right given to the respon-
dents to enjoy 60 acres of land would be sustained.

      It would be open to the respondents to make an application to the       B
competent authority. On making such application to the competent
authority, with prior notice, would inspect the area in presence of the
respondents and any of the persons on their behalf and determine which
of the trees coming under the definition of "trees' under Section 2 (e) of
Preservation Act should be preserved and which of the trees should be         C
permitted to be felled and carried away. If any difficulty arises in im-
plementation of this order, it would be open to the parties to approach the
High Court and seek further direction in this behalf. Thereafter, the State
Government is directed to issue modified notification in terms of Section
5 of the Act.
                                                                              D
      The appeal is accordingly disposed of in terms of the above direc-
tion. No costs.

R.P.                                                  Appeal disposed of.