Supreme Court of India
STATE OF KERALAversusABDUL ALI
- Citation
- 2013 INSC 235
- Decided
- 10 April 2013
- Disposal
- Disposed off
- Bench
- G S SINGHVI
Holding
The Court held that because the disputed lands are excluded from the definition of private forest under the Vesting and Assignment Act and are not covered by Section 2(f)(1)(ii), the State cannot issue a notification under Section 5 of the Preservation of Trees Act for total prohibition of tree cutting.
Summary
The Supreme Court examined whether land that does not qualify as a "private forest" under the Kerala Private Forests (Vesting and Assignment) Act, 1971 can be subjected to a total prohibition of tree felling under Section 5 of the Kerala Preservation of Trees Act, 1986. The Court held that Explanation II of Section 5 incorporates the definition of "private forest" from the Vesting and Assignment Act, and the lands in question were expressly excluded from that definition and also did not satisfy the alternative definition in Section 2(f)(1)(ii). Consequently, the State could not validly issue a notification under Section 5 for those lands, though the regulatory restrictions of Section 4 continue to apply to the species listed in Section 2(e). The Special Leave Petitions were dismissed, and no costs were awarded.
Issues considered
- Whether land not classified as a private forest under the Kerala Private Forests (Vesting and Assignment) Act, 1971 falls within the scope of Section 5 of the Kerala Preservation of Trees Act, 1986.
- Interpretation of Explanation II of Section 5 and its reference to the definition of private forest.
- Whether the Madras Preservation of Private Forests Act, 1949 affects the applicability of the Preservation of Trees Act to the disputed lands.
Legislation cited
- Kerala Land Reforms Act, 1963
- Kerala Preservation of Trees Act, 1986s. 2(e), s. 4, s. 5
- Kerala Private Forests (Vesting and Assignment) Act, 1971s. 2(f), s. 3, s. 4, s. 5
- Madras Preservation of Private Forests Act, 1949
Subjects
private forestpreservation of treessection 5 notificationKerala lawenvironmental protectiontree felling prohibitionland vesting
Judgment
[2013] 5 S.C.R. 799
STATE OF KERALA A
v.
ABDUL ALI
(Special Leave Petition (Civil) No. 13802 of 2006 etc.)
APRIL 10, 2013
B
[G.S. SINGHVI AND KURIAN JOSEPH, JJ.]
Kera/a Preservation of Trees Act, 1986 - ss.2(e), 4 and
5 - Notification u/s.5 providing total prohibition of cutting of
trees - Plea that the forest in question, being not a 'Private C
Forest' within meaning of s.2(f)(1)(i) of Kera/a Private Forests
(Vesting and Assignment) Act, 1971, could not be brought
under purview of the Notification uls.5 of Preservation of Trees
Act- Held: Explanation II u/s.5 of Preservation of Trees Act
is a piece of legislation by reference - Therefore, the definition D
of 'Private Forest' under the Vesting and Assignment Act is
to be taken for 'Private Forest' u/s,5 of the Preservation of
Trees Act - The forest in question were covered by Madras
Preservation of Private Forests Act, 1949 - Since the
definition of 'Private Forest' u/s.2(f)(1)(i) excludes the forests E
on which Madras Preservation of Private Forests Act was
applicable, the forest in question would not be covered u/
s.2(f)(1)(i) of Vesting and Assignment Act and consequently
would also not be covered under the provisions of
Preservation of Trees Act - Hence cannot be notified u/s.5 F
of Preservation of Trees Act - However, the trees specified
uls.2(e) of Preservation of Forest Act would not fall outside the
purview of s.4, whereby no tree or its branch would be cut
without previous permission (in writing), of the authorized
officer - Kera/a Private Forests (Vesting and Assignment) G
Act, 1971 - s.2(f)(1)(i) - Madras Preservation of Private
Forests Act, 1949.
799 H
800 SUPREME COURT REPORTS [2013) 5 S.C.R.
A
T.N. Godavarman Thirumulkpad vs. Union of India and
Ors. (1997) 2 SCC 267: 1996 (9) Suppl. SCR 982 - referred
to.
Case Law Reference: ·
B
1996 (9) Suppl. SCR 982 referred to Para 25
CIVIL APPELLATE JURISDICTION : Special Leave
Petition (Civil) No. 13802 of 2006.
C From the Judgment & Order dated 31.03.2006 of the High
Court of Kerala at Ernakulam in OP No. 3252 of 2003.
WITH
SLP (C) No. 1380 of 2007.
D
SLP (C) No. 26236 of 2008.
K. Padmanabhan Nair, Mohan Kumar B.R. Subramonium
Prasad, Siddhartha Dave, A Raghunath, B.V. Deepak for the
E appearing parties.
The Order of the Court was delivered
KURIAN, J. 1. Whether the land which is not a private
forest as defined under The Kerala Private Forests (Vesting
F and Assignment) Act, 1971 can be brought under the teeth of
The Kerala Preservation of Trees Act, 1986, is the moot
question arising for consideration in these cases.
2. The Kerala Private Forests (Vesting and Assignment)
G Act, 1971 (hereafter referred to as 'the Vesting and Assignment
Act') was enacted to provide for the vesting in the Government
of private forests in the State of Kerala and for the assignment
thereof to agriculturists and agricultural labourers for cultivation.
It is stated in the preamble that private forests in the State of
H
STATE OF KERALA v. ABDUL ALI 801
[KURIAN, J.]
Kerala are agricultural lands and that the Government wanted A
to utilize such agricultural lands so as to increase agricultural
production and promote welfare of the agricultural production
in the State. It may be noted that private forests were exempted
from the purview of The Kerala Land Reforms Act, 1963, in the
matter of ceiling. B
3. 'Private forest' has been defined under Section 2(f) of
the Vesting and Assignment Act. The provision reads as
follows:
"2(f) "private forest" means c
(1) in relation to the .Malabar district referred to in sub-
section (2) of Section 5 of the State Reorganization Act,
1956 (Central Act 37 of 1956)-
D
(i} any land which the Madras Preservation of Private Forest
Act. 1949 (Madras Act XXVll of 1949), applied
immediately before the appointed day excluding-
(A} lands which are gardens or nilams as defined
in the Kerala Land Reforms Act, 1963 (1 of 1964). E
(B} lands which are used principally for the
cultivation of tea. coffee. cocoa. rubber. cardamom
or cinnamon and lands used for any purpose
ancillary to the cultivation of such crops or for the F
preparation of the same for the market.
Explanation:- Lands used for the construction of
office buildings, godowns, factories, quarters for
workmen, hospitals, schools and playgrounds shall
be deemed to be lands used purposes ancillary to G
the cultivation of such crops;
(C} lands which are principally cultivated with
cashed or other fruit bearing trees or are principally
cultivated and any other agricultural crop and H
802 SUPREME COURT REPORTS [2013] 5 S.C.R.
A (D) sites of buildings and land appurtenant to and
necessary for the convenient enjoyment or use of
such buildings;
(ii) anv forest not owned by the Government. to which the
Madras Preservation of private Forests Act. 1949 did not
B
filill!y, including waste lands which are enclaves within
wooded areas.
(2) in relation to the remaining areas in the State of Kerala
any forest not owned by the Government including waste
c lands which are enclaves within wooded areas.
Explanation:- For the purpose of this clause, a land shall
be deemed to be waste land notwithstanding the
existence thereon of scattered trees or sbrubs (sic
D shrubs);"
(Emphasis supplied)
4. Section 3 of the Vesting and Assignment Act provides
for the vesting of the private forests in the Government. In this
E Act, 10th May, 1971 has been noted as "appointed day". The
provision reads as follows:
"3. Private forests vest in Government.-
(1) Notwithstanding anything contained in any other law
F for the time being in force, or in any contract or other
document but subject to the provisions of sub-
sections (2) and (3), with effect on and from the
appointed day. the ownership and possession of all
private forests in the State of Kerala shall by virtue
G of this Act. stand transferred to and vested in the
Government free from all encumbrances, and the
right, title and interest of the owner or any other
person in any private forest shall stand extinguished.
H (2) Nothing contained in sub-section (1) shall apply in
STATE OF KERALA v. ABDUL ALI 803
[KURIAN, J.]
respect of so much extend of land comprised in A
private forests held by an owner under his personal
cultivation as is within the ceiling limit applicable to
him under the Kerala Land Reforms Act, 1963 (1
of 1964) or any building or structure standing
thereon or appurtenant thereto. B
Explanation:- For the purposes of this sub-section,
'cultivation' includes cultivation of trees or plants of any
species.
(3) Nothing contained in sub-section (1) shall apply in C
respect of so much extent of private forests held by
an owner under a valid registered document of title
executed before the appointed day and intended for
cultivation by him, which together with another lands
held by him to which Chapter Ill of the Kerala Land D
Reforms Act, 1963, is applicable, does not exceed
the extent of the ceiling area applicable to him under
Section 82 of the said Act.
(4) Notwithstanding anything contained in the Kerala E
Land Reforms Act, 1963, private forests shall, for
the purposes of sub-section (2) or sub-section (3),
be deemed to be lands to which Chapter Ill of the
said Act is applicable and for the purposes of
calculating the ceiling limit applicable to an owner,
private forests shall be deemed to be 'other dry F
lands' specified in Schedule II to the said Act."
(Emphasis supplied)
5. The Kerala Preservation of Trees Act, 1986 (hereinafter G
referred as "the Preservation of Trees Act") was introduced in
order to provide for preservation of trees in the State of Kerala.
The Statement of Objects and Reasons for introducing the
Preservation of Trees Act, to the extent relevant, reads as
follows:
H
804 SUPREME COURT REPORTS [2013] 5 S.C.R.
A "Indiscriminate felling and destruction of trees in the State
have been brought to the notice of Government and it is
feared that it may result in quick denudation of the forest
growth and consequent soil erosion, land slides, flood etc.
This is also detrimental to ecological balance. Of late,
B felling of trees and destruction of flora and fauna are
reported to be on the increase. As there was no effective
law to prevent this tendency, it was decided to enact a law
for imposing restrictions on the cutting of trees in the State
and regulating cultivation in t.he hill areas of the State .. ."
c (Emphasis supplied)
6. Section 2(e) of the Preservation of Trees Act has
defined a "tree". To quote:
D "(e) "tree" means any of the following species of trees.
namely:-
Sandalwood (Santalum album). Teak CTectona grandis).
Rosewood (Dalbergia latifolia). lrul <Xylia Xylocarpal.
Thempavu <Terminalia tomantosa). Kampakam (Hopea
E parviflora). Chempakam (Michelia Chempacal. Chadachi
(Grewia tilliaefolia) .. Chandana vempu (Cedrela toonal .
. Cheeni <Tetrameles nudifloral.
(Emphasis supplied)
F
7. Section 4 of the Preservation of
Trees Act provides for restriction regarding cutting, etc., of
trees. The provision reads as follows:
"4. Restriction regarding cutting. etc.• of trees.-
G
(1) No person shall. without the previous permission in
writing of the authorised officer cut. uproot or burn,
or cause to be cut, .uprooted or burnt any tree.
(2) The permission under sub-section (1) shall not be
H refused if-
STATE OF KERALA v. ABDUL ALI 805
[KURIAN, J.]
(a} the tree constitutes a danger to life or property: or A
(b} the tree is dead. diseased or windfallen:
Provided that where permission to cut a tree is
granted on the ground specified in clause (a} or
clause (b}, the authorised officer shall impose as a B
condition for the grant of such permission the
effective regeneration of an equal number of the
same or other suitable species of trees; or
(c} such cutting is to enable the owner of the land in c
which the tree stands to use the area cleared or the
timber cut for the construction of a building for his .
own use.
(3) No person shall cut or otherwise damage, or cause
D
to be cut or otherwise damaged, the branch of any
tree:
Provided that the provisions of this sub-section shall
not be deemed to prevent the pruning of any tree as
required by ordinary agricultural or horticultural practices. E
(4) No person shall, without the previous permission in
writing of the authorised officer, destroy any plant
or any tree or do any act which diminishes the value
of any such plant.
F
(5) Nothing contained in sub-section (1) or sub-section
(2) or sub-section (3) or sub- section (4) shall apply
in respect of any tree or plant in the compound of
any residential building:
G
Provided that where such compound exceeds one
hectare in extent, the provisions of this sub-section
shall apply only in respect of an extent of one
hectare immediately surrounding the residential
bui~i~. H
806 SUPREME COURT REPORTS [2013) 5 S.C.R.
A (6) 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 Section 2, standing on such land,
B without obtaining a permission under this section."
(Emphasis supplied)
8. Section 5 of the Preservation of Trees Act provides for
total prohibition of cutting of trees in the notified areas. The
C provision reads as follows:
"5. Prohibition of cutting of tree in notified areas.-
(1) Notwithstanding anything contained in any law for
the time being in force, or in any Judgment, decree
D or order of any Court, tribunal or other authority, or
in any agreement or other arrangement,
Government may. with a view to preserving the tree
growth in private forests or in the Cardamom Hills
Reserve or in any other areas cultivated with
E cardamom. by notification in the Gazette direct that
no tree standing in any such area specified in the
notification shall be cut, uprooted, burnt or
otherwise destroyed except on the ground that-
F (a) the tree constitutes a danger to life or property; or
(b) the tree is dead, diseased or windfallen:
Provided that the provisions of this sub-section shall
not be deemed to prevent the pruning of any tree
G as required by ordinary agricultural or horticultural
practices.
(2) No person shall, without the previous permission in
writing of the authorised officer, cut, uproot, burn or
otherwise destroy or cause to be cut, uprooted,
H
STATE OF KERALA v. ABDUL ALI 807
[KURIAN, J.]
burnt or otherwise destroyed any tree in any area A
specified in the notification under sub-section (1) on
any of the grounds specified therein.
Explanation 1:- For the purposes of this section. the
term "tree" shall include any species of tree.
B
Explanation II:- For the purposes of sub-section (1 l. the
expression "private forest" means any land which
immediately before the 10th day of May. 1971. was a
private forest as defined in the Kerala Private Forests
(Vesting and Assignment) Act. 1971." c
(Emphasis supplied)
9. A bare perusal of the provisions would clearly show that
while the Vesting and Assignment Act is intended for vesting D
of private forests as on 10.05.2011 in the Government and,
thereafter, for distribution of the same to the agricultural
labourers whereas the Preservation of Trees Act is meant for
regulating destruction of certain species of tree growth and for
total prohibition of destruction of all species of tree growth in
certain notified areas. E
10. In the instant case, we are concerned with the issue
relating to total prohibition. The crux of the arguments advanced
on behalf of the land owners and virtually upheld by the High
Court, is that their lands having been taken and declared to be F
not covered by the Vesting and Assignment Act and, hence,
no notification on total prohibition of felling or uprooting of trees
can be validly issued by the State. High Court had upheld that
contention and, thus aggrieved, the State has come up in
Appeal. G
11. 23.33 acres of land belonging to the 1st Respondent
herein was finally declared to be not covered by the provisions
of the Vesting and Assignment Act as per the Division Bench
decision of the High Court of Kerala dated 04.09.1981 in M.F.A.
H
808 SUPREME COURT REPORTS [2013) 5 S.C.R.
A No. 163/1977 (Annexure P1 in S.L.P. (C) No. 13802/2006). It
was declared by the Court that:
"23.33 acres would be outside the purview of vesting. It is
not to be taken as land to be vested."
B 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
F 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
G 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 809
[KURIAN, J.]
07.03.2006 in Writ appeal No. 1449/2003. In that case also, A
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. B
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.
c
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
all other enactments, judgments, decrees, etc. Still further, it is D
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 E
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.
F
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. G
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
H
810 SUPREME COURT REPORTS [2013] 5 S.C.R.
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,
8
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'.
C 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.
D (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.
E (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.
F
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
H
STATE OF KERALA v. ABDUL ALI 811
[KURIAN, J.]
and interference with customary and prescriptive rights A
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 - B
(i) to private forests in the districts of Malabar and
South Kanara having a contiguous area exceeding
100 acres."
c
25. In all the three cases before us, the stand of the State
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
0
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, E
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 F
of Section 2(f)(1)(ii): -
(i) It must be a forest,
(ii) It is not owned by the Government and
G
(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 H
812 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.
G 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 813
[KURIAN, J.]
destruction of trees specified under Section 2(e) of the Act. We A
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 B
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.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "private forest"Sign in to search