PRATHEEPAN C.M v. STATE OF KERALA

that the applicant has not challenged the said finding in Ext.P1 order of the Forest Tribunal and as per Section 5 of the Act 1986 the Government is empowered to direct preservation of tree growth in the property. It is also contended that by Ext.R3(a) notification, the property was notified under Section 5 of the Act, 1986 and it is in the said circumstance that the property was restored as per Ext.P6 with a condition that Section 5 of the Act 1986 is applicable in respect of the property. Learned Government pleader relies on the judgment in Joseph v. State of Kerala, 2005 KHC 1503 and the judgment in WA No. 1484 of 2010 in support of his contention. WP(C) No.36061 of 2023 4

I have heard the learned counsel for the petitioner and the learned Special Government Pleader (Forests).

Admittedly, the property in issue is covered by Ext.P1 order of the Forest Tribunal whereby the applicant therein was held entitled for exemption under Section 3(2) of Act 1971 and the Tribunal did not enter a finding in Ex. P1 that the land is not a private forest. In the judgments relied on by the petitioner, ie., Kottal Ayishumma and Managing Trustee, Arya Vaidyasala Kottakkal’s case cited supra, the property is excluded from the definition of Private Forest unlike in Ext.P1 only an exemption under Section 3(2) of Act 1971 was granted and therefore I am of the view that the said judgments cannot be made applicable in the facts and circumstances of the present case. Per contra learned Government Pleader relies on the judgement in Joseph’s case wherein it is held that only for the reason that exemption has been granted for vesting under the Act 1971 it will not affect a notification issued under Section 5. Likewise in W.A. No.1484 of 2010, paragraphs 13 and 14 of the judgment reads as follows: “13. Evidently therefore the benefit of exemption given to the appellant is the benefit of exemption as provided in Section 3 (2) and 3(3) of Act 26 of 1971, which reads thus; “3(2) Nothing contained in sub-section (1) shall apply in respect of so much extent of land comprised in 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. Explanation- For the purposes of this subsection, “cultivation” includes cultivation of trees or plants of any species. WP(C) No.36061 of 2023 5 (3) Nothing contained in sub-section (1) shall apply in 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 other lands held by him to which Chapter III of the Kerala Land Reforms Act, 1963, is applicable, does not exceed the extent of the ceiling are applicable to him under Section 82 of the said Act.”

Reading of the above provisions show that despite the exemption from vesting as provided in Section 3(2) and 3(3), the land which is exempted would still retain the character of private forest. If that be so, for the purpose of Section 5 of the Kerala Preservation of Trees Act, even in spite of an order under Section 3(2) and (3) of Act 26 of 1971, the land can still be treated as a private forest and a notification under Section 5 could also be validly issued.” Section 3(2) of the Act 1971 only says that provisions of Section 3(1) shall not apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under Kerala Land Reforms Act, 1963 and therefore such exemption, as rightly pointed out by the Special Government Pleader, pre- supposes that the said area is a private forest and therefore the provisions of Kerala Preservation of Trees Act 1986 will have application.