Kunnath Chandran and Others vs State and Others

K.S. Radhakrishnan, J.—Petitioners are aggrieved by the notification dated 2.9.1993 issued by the Government of Kerala in exercise of the powers conferred by sub-section (1) of Section 5 of the Kerala Preservation of Trees Act, 1986 (hereinafter called the ''Act'') by which Government ordered no tree standing in 60 acres of Kalikavu Village involved in O.A. No. 2 of 1980 be uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes a danger to life or property, or the tree is dead, deceased or windfallen. Above mentioned property situated in R.S. No. 91 part was a portion of the Kottachokkadan Malavaram in Kalikavu Village, which was governed by the provisions of erstwhile Madras Preservation of Private Forests Act. Contiguous to the said property, there are forests in the said Malavaram having 875 hectares. Madras Preservation of Private Forests Act 1949 applied to the private forests in the District of Malabar and South Kanara having a contiguous area exceeding 100 acres, which Act was enacted to prevent the indiscriminate destruction of private forests and interference with customary and prescriptive rights therein and for certain other purposes. That Act was later repealed by the Kerala Private Forests (Vesting and Assignment) Act, 1971.

After coming into force of the Kerala Private Forests (Vesting and Assignment) Act, 1971, the assignors of the petitioners filed O.A. No. 2 of the 1980 before the Forest Tribunal, Manjeri u/s 8 of the said Act for a declaration that the property in question is not a private forest, and therefore the same is not vested in the Government under the said Act. Tribunal, after taking into consideration the oral and documentary evidence, came to the conclusion that the petition schedule property is a land to which Madras Preservation of Private Forests Act applied immediately before the commencement of Act 26 of 1971. It was found by the Tribunal that the property in question is surrounded on all sides by forest. There is a categorical finding that the property is full of forest trees and is surrounded by full of forest trees. It was found that the property in question had not been cultivated at all at any time. Tribunal held that the property is a ''private forest'' under Act 26 of 1971.

Tribunal also held that the property was not under personal cultivation of the assignors of the petitioners at the commencement of Act 26 of 1971, and therefore they are not entitled to get exemption u/s 3(2) of Act 26 of 1971. Tribunal, therefore, held that property in question is liable to be exempted u/s 3(3) of Act 26 of 1971 and held that the property has not vested in the Government under the said Act. O.A. was therefore allowed holding that property is a private forest and the same has not vested in the Government u/s 3(3) of Act 26 of 1971. Appeal, M.F.A. No. 648 of 1990 was preferred by the State, and this Court dismissed the appeal. It is, therefore, evident that the property in question is a private forest not vested in the Government under the provisions of Section 3(3) of Act 26 of 1971 and the same was governed by the Madras Preservation of Private Forests Act, 1949 before the commencement of Act 26 of 1971.

Private forest has been defined u/s 2(f) of Act 26 of 1971 as any land to which the Madras Preservation of Private Forests Act, 1949 applied immediately before the appointed day excluding lands which are garden or nilams as defined in the Kerala Land Reforms Act, 1963 and lands which are used principally for the cultivation of tea, coffee, cocoa, rubber, cardamom, etc. It is evident that the property in question was not cultivated with coffee, tea, rubber, cocoa, cardamom, etc. prior to the commencement of Act 26 of 1971. There is a categorical finding by the Tribunal that it is a forest land never cultivated by anybody.

Government of Kerala issued a notification dated 2.9.1993 in respect of the property in question, since it is a private forest as defined in the Kerala Private Forests (Vesting and Assignment) Act, 1971. Notification was u/s 5 of the Kerala Preservation of Trees Act.

The Kerala Preservation of Trees Act was promulgated by the state of Kerala, since there was indiscriminate felling and destruction of trees in the State of Kerala resulting in considerable soil erosion and destruction and loss of the timber wealth of the State. Before promulgation of the Act, Acts which were in force were, the Kerala Restriction on Cutting and Destruction of Valuable Trees Act, 1974, and the Kerala Preservation of Trees Ordinance, 1986. Kerala Restriction on Cutting and Destruction of Valuable Trees Act, 1974 restricted the cutting and destruction of valuable trees in private properties. Such restriction continued in the present Act as well. Section 2(c) of the Act defines ''owner in relation to any land'' as including a mortgagee, lessee, or other person having right to possession and enjoyment of that land. Section 4 of the Act says 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. Section 4 restricts cutting of certain species of trees which have been defined in Section 2(e) of the Act. Therefore before cutting trees mentioned in Section 2(e) such as teak, rose wood, sandalwood, etc., permission of the authorised officer is necessary. However, if the tree mentioned in Section 2(e) constitutes danger to life or property, or the tree is dead, diseased or windfallen, permission shall not be refused. It is a general provision applicable to all cases, whether land is a private forest or not.

Section 5 prohibits cutting of trees in notified areas. Section is extracted below:

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 or order of any court, tribunal or other authority, or in any agreement or other arrangement, the 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 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-

(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 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, burnt or otherwise destroyed any tree in any area specified in the notification under sub-section (1) on any of the grounds specified therein..

Explanation I.-For the purposes of this Section the term ''tree'' shall include any species of tree.

Explanation II. - For the purposes of sub-section (1) the expression ''private forest'' means and 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.

(emphasis supplied)

As per the aforesaid provision, power is given to the Government to issue notification, notwithstanding anything contained in any law for the time being in force, or in any judgment, decree or order of any court, tribunal or other authority. This is an extra-ordinary power given to the Government by the Legislature to issue notification de hors the judgment, decree or order of any court. Power is specifically given to the Government by Section 5 of the Act so as to prevent soil erosion and destruction and loss of the timber wealth in the State. Reference is also made to preservation of tree growth in private forests or in the Cardamom Hills Reserve or in any other areas cultivated with cardamom. Therefore if it is a private forest Government can issue notification u/s 5. Meaning of ''private forest'' is given in Explanation II to Section 5 to mean 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. In the instant case, it is categorically found by the Tribunal that the petitioners'' land is a private forest immediately before the 10th day of May, 1971, and the land was governed by the Madras Preservation of Private Forests Act, 1949. Therefore petitioners'' property squarely falls within the expression ''private forest'' in Explanation II to Section 5 of Act 26 of 1971.

It is the case of counsel for the petitioners that notification cannot take in all species of trees, even though Government has got power to restrict cutting and removal of trees, and the same can be done only in respect of the species of trees mentioned in Section 2(e). Contention of counsel for the petitioners cannot be accepted, since definition of Section 2(e) cannot be applied to Section 5. In the Act definition section starts with the expression ''unless the context otherwise requires''. Meaning of the term ''unless the context otherwise requires'' and also the principle that a word has to be understood in the context in which it was placed came up for consideration in several decisions, such as, Printers (Mysore) Ltd. and Another Vs. Asstt. Commercial Tax Officer and Others, , Commissioner of Sales Tax, State of Gujarat Vs. Union Medical Agency, , S.K. Gupta v. K.P. Jain, AIR 1979 SC 734, Thomman v. Catholic Syrian Bank Ltd., 1964 KLT 62, V.K. Balakrishnan v. Asoka Bank Ltd., 1965 KLT 1059 (FB), 1973 KLT 1059 (FB); Janaky v. Chellappan 1973 KLT 736, Bourne v. Norwich Crematorim Ltd., 1967 (2) All. E.R. 576; Re Bidie (Deceased), 1948 (2) All. E.R. 995. The definition of a word has to be understood in the context in which the word is placed, especially in a case where the definition clause starts with the expression ''unless the context otherwise requires''. It is a well settled principle that when a word or phrase has been defined in the interpretation clause, prima facie that definition governs whenever that word or phrase is used in the body of the statute. But where the context makes the definition clause inapplicable, a defined word when used in the body of the statute may have to be given a meaning different from that contained in the interpretation clause; all definitions given in an interpretation clause are, therefore, normally enacted subject to the usual qualification - ''unless there is anything repugnant in the subject or context'', or ''unless the context otherwise requires''. Even in the absence of an express qualification to that effect such a qualification is always implied: Commissioner of Sales Tax, State of Gujarat Vs. Union Medical Agency, .

When we consider the scope of Section 5, definition of ''tree'' as we get in section 2(e) has to be understood in a different context. Sections 4 and 5 are intended for different purposes. It is pertinent to note that in Section 5 there is a specific reference to ''Private forests'', Cardamom Hills Reserve or any other area cultivated with cardamom. It is also pertinent to note cardamom will grow only in a forest area. Therefore the purpose of issuing notification u/s 5 is evidently to prevent soil erosion and destruction and loss of the timber wealth in the State. Therefore Explanation I for the purpose of Section 5 says the term ''tree'' shall include any species of tree. To prevent soil erosion and destruction and loss of timber wealth in the State, it cannot be discriminated against different trees. Explanation I says for the purpose of Section 5 ''tree'' shall include any species of tree. Explanation I also uses the expression ''shall include''. Word ''shall'' ordinarily means mandatory. Word ''shall'' has to be construed in the context in which it is used and the purpose it seeks to serve. Legislature has also used the expression ''any''. ''Any'' in this particular context has to be understood as indefinitely to an appreciable extent. Therefore the words ''shall include any species of tree'' have to be understood in the context in which they are used and the purpose sought to be achieved by Section 5 read with the object of the Act. In view of the qualification ''unless the context otherwise requires'' in the opening sentence of the definition Section, the Court has to look at the context the collocation and object of such words relating to such matter and interpret the meaning intended to be conveyed with the object of the Act.

I have also considered the scope of Section 5 in Mathew P. Thomas Vs. Kerala State Civil Supply Corpn. Ltd. and Others, and held that the term ''tree'' has to be understood in a different context in Section 5 which is evident from the expression ''unless the context otherwise requires'' used in the definition clause. In the said circumstances, I am of the view that Government is perfectly justified in issuing the notification in the nature of Ext.P8. As I have already mentioned, notification issued u/s 5(1) has a purpose to achieve. Notification in the nature of Ext.P8 can be issued notwithstanding anything contained in any judgment, decree, order, etc. Therefore Exts.p1, p2 and p9 are of no consequence for issuing a notification in the nature of Ext.P8. It is evident from the facts of the case the property in question is a rich evergreen forest of Vadakkekotta Malavaram in Kalikavu Range of Chokkad Village of Nilambur Taluk. Vadakkekotta Malavaram is extending to about 1000 hectares and supports big trees of moist deciduous and thick natural vegetation. It is also seen the area is undisturbed forest area and an evergreen private forest which has never been brought under cultivation. Since it was undisturbed forest area, Government thought it fit to issue the notification. I find the notification is sustainable in law and in consonance with the object of the Act. Counsel for the petitioners however relied on the judgment of the Supreme Court in State of Kerala and others Vs. M.N. Sankara Narayanan and others, , the contended that Supreme Court has interfered with the notification issued by the State Government u/s 5 of the Kerala Preservation of Trees Act, and therefore the same benefit would be extended to the petitioners as well. I am of the view the decision cited by the petitioners is not applicable to the facts of this case. In that case, Supreme Court was dealing with 60 acres of land which was not declared to be a private forest, as defined under the Vesting and Assignment Act, and therefore Preservation of Trees Act has no application. It is under the above mentioned circumstances that the Supreme Court directed the State Government to amend the notification to that effect. In the instant case, there is a categorical finding by the Tribunal, and confirmed by this Court, that the area is a private forest under the Madras Preservation of Private Forests Act, 1949, and also a private forest as defined under the Kerala Private Forests (Vesting and Assignment) Act, 1971. Consequently, it comes under Explanation II to section 5 of the Kerala Preservation of Trees Act.

Counsel for the petitioners submitted that since the property in question is a private forest, permission may be granted for the purpose of planting rubber for which they obtained a report from a consultant. Reference was made to an order passed by this Court granting permission to cut the trees. I am of the view various provisions of the Act have not been considered in the said judgment. However, in this case, since I have found that the property in question is a private forest governed by the Madras Preservation of Private Forests Act, and later by the kerala private Forests (Vesting and Assignment) Act, 1971 as per Explanation II to Section 5 of the Act, no permission can be granted to cut and remove the forest trees in that area, in view of the notification dated 2.9.1993 issued by the Government. Accordingly, this Original Petition is dismissed.