Mathew and Another vs D.F.O. and Others

K.S. Panicker Radhakrishnan, J.—Petitioner in O.P. No. 8209 of 1995 is now holding 14.85 acres of land in R.S. No. 1 of Ullipadam Village, Ernad Taluk, which was part of a private forest vested in the Government as per the provisions of Private Forests (Vesting and Assignment) Act, 1971 (Act 26 of 1971). The area was subject matter of O.A. No. 65 of 1977 of Forest Tribunal, Manjeri, the order of which was confirmed by this Court in M.F.A. No. 439 of 1979. As per the order of the Tribunal, an area of 14.85 acres was handed over to the Petitioner on 20-2-1995 after completing all formalities. Government of Kerala issued a notification dated 28-2-1989 u/s 5(1) of the Kerala Preservation of Trees Act, 1986 in the gazette dated 13-3-1989 directing that no tree standing in the area specified in the Schedule thereto shall be cut, uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes a danger to life or property; or the tree is dead, diseased and wind fallen. Reason for issuing such a notification was that the area is supported by valuable tree growth. Felling of trees in the area would adversely affect the ecological balance and would lead to soil erosion.

Petitioner, however, submitted an application dated 24-3-1995 before the Forest Range Officer, Nilambur for permission to cut and remove about 1000 bamboo trees for the purpose of raising rubber plantation. According to Petitioner, unless bamboo trees are cut and removed, land cannot be used for rubber cultivation. Application submitted by the Petitioner was rejected by the Forest Range Officer stating that cutting of bamboos in the vested area is prohibited, since Government has issued notification u/s 5 of the Kerala Preservation of Trees Act, 1986. Aggrieved by the said order, Petitioner has approached this Court.

Petitioner in O.P. No. 14911 of 1996 is in possession of 2.87 acres of land comprised in Sy. No. 1/1 of Kalkoonthal Village in Idukki District. Above mentioned land is situated in the Cardamom Hills Reserve in Udumbanchola Taluk. Petitioner submits he had planted nearly 20 anjali trees which are now, according to Petitioner, aged about 20 years. Petitioner wanted to cut and remove the said anjali trees for the purpose of cultivation of crops. Since the area comes within the Cardamom Hills Reserve he submitted an application seeking permission to cut and remove the anjali trees before the Forest Range Officer, purported to be u/s 4 of the Kerala Preservation of Trees Act. Even though Petitioner''s application was recommended by the Range Officer, the same was however rejected by the Divisional Forest Officer by his order dated 10-9-1996 stating that the area comes within the Cardamom Hills Reserve and that if permission is granted the same would affect the preservation of trees. It was stated any permission if granted would violate Section 5 of the Preservation of Trees Act. Aggrieved by the said order, Petitioner has approached this Court.

Counter affidavit has been filed on behalf of Respondents in O.P. No. 8209 of 1995. It was stated the area is a private forest vested in the Government under the Kerala Private Forests (Vesting and Assignment) Act, 1971, cutting of any tree from the said area is prohibited u/s 5 of the Kerala Preservation of Trees Act, except on the ground that the tree constitutes a danger to life or property, or tree is dead, diseased and wind fallen. In the statement filed in O.P. No. 14911 of 1996 it was stated the area from where anjali trees are to be cut and removed comes within the Cardamom Hills Reserve and therefore the same also cannot be permitted u/s 5 of 1986 Act. Counsel for the Petitioners however maintain the stand that Bamboo as well as anjali trees are not trees as defined u/s 2(e) of the 1986 Act, and therefore Respondents have no jurisdiction to refuse permission for cutting and removing the said trees. It was pointed out restriction is only with regard to trees enumerated u/s 2(e) of 1986 Act.

Under the above mentioned circumstances, it has become necessary to consider the scope of Sections 4 and 5 of 1986 Act read with Section 2(e) thereof.

Act 35 of 1986 is an Act enacted to preserve trees in the State of Kerala. Act was enacted to regulate indiscriminate felling and destruction of trees in the State of Kerala, since it was found that there had been indiscriminate felling and destruction of trees in the State of Kerala resulting in considerable soil erosion and destruction and loss of timber wealth of the State. Before the Promulgation of this Act, Kerala Restriction on Cutting and Destruction of Valuable Trees Act, 1974 was in force in the State of Kerala. It restricted cutting and destruction of certain valuable trees in private lands in the State of Kerala. Valuable tree had been defined in the said Act to mean Sandalwood, Rosewood and Teakwood tree. Kerala Preservation of Trees Ordinance, 1986 was also in force. Both the Act of 1974 and Ordinance of 1986 were repealed by 1986 Act. Object of the present Act, apart from making restriction on cutting and destruction of trees in private lands, is also to prevent soil erosion and destruction and loss of timber wealth in the State.

Section 4 of the Act restricts the cutting of trees without previous permission of the authorised officer in writing. This provision only restricts the cutting, so as to achieve the object of the Act that is to prevent soil erosion and destruction of loss of timber generally from private holdings. However, permission shall not be refused if the tree constitutes danger to life or property of if the tree is dead, diseased, or wind fallen.

Prohibition of cutting of trees in the notified areas in the private forests or in the Cardamom Hills Reserve or in any other areas cultivated with cardamom is provided u/s 5 of the Act. Section 5 is extracted below:

Prohibition of cutting of tree in notified areas:(1) Not with standing 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 wind fallen;

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 is, 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 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.

As per the aforesaid provision, power is given to the Government to issue a notification in the gazette directing no tree standing in a private forest or in the Cardamom Hills Reserve or in any other area cultivated with cardamom be cut, uprooted, burnt of otherwise destroyed, notwithstanding anything contained in any law, or in any judgment, decree, or order of any court, tribunal or other authority, or in any agreement or other arrangement. This is an extra-ordinary power given to the Government by the statute. For the exercise of such power Government has to issue a notification in the gazette keeping in view the object and purpose of the Act. However, if the tree constitutes a danger to life or property, or the tree is dead, diseased or wind fallen, permission could be granted. Provisions of Sub-Section 5(1) shall not be deemed to prevent the pruning of any tree as required by ordinary agricultural or horticultural practices. Even for the purpose of cutting a tree which constitutes a danger to life or property or which is dead, diseased or wind fallen, permission has to be obtained from the authorised officer on any of the grounds specified therein.

Section 5 of 1986 Act begins with non-obstante clause so that it will have full operation or that the provisions embraced in the non-obstante clause will not be an impediment for the operation of particular section. Non-obstante clause sometimes is appended to a Section in the beginning, with a view to give the enacting part of the section in case of conflict an overriding effect over the provision or Act mentioned in the non-obstante clause: Union of India (UOI) and Another Vs. G.M. Kokil and Others, ; Narcotics Control Bureau Vs. Kishan Lal and others, ; and M/s. Orient Paper and Industries Ltd. and another Vs. State of Orissa and others, .

Explanation I to Section 5 explains the term ''tree'' as to ''include any species of tree'' for the purpose of that Section. As held by the Supreme Court in Km. Sonia Bhatia Vs. State of U.P. and Others, , Explanation widens the scope of the main section and is not meant to carve out a particular exception to the contents of the main section. Explanation to a Section is not a substantive provision by itself. It is entitled to explain the meaning of the words contained in the Section or clarify ambiguities or clear them up. It becomes a part and parcel of the enactment. Its meaning must depend upon its terms. Sometimes, it would be added to include something within it or to exclude from the ambit of the main provision or condition or some words occurring in it. Therefore, the explanation normally should be so read as to harmonise with and to clear up any ambiguity in the same Section: Sulochana Amma Vs. Narayanan Nair, . Explanation I says for the purpose of Section 5, the term ''tree'' shall include any species of tree, to mean that for the purpose of other Sections the term ''tree'' may not include any species of tree. Explanation I also used 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. As held by the Supreme Court in State of U.P. Vs. Manbodhan Lal Srivastava, ; and The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, , word ''shall'' raises a presumption that the particular provision is imperative. The Legislature has also used the expression ''include'' in the Explanation. As held by the Supreme Court in Central Inland Water Transport Corporation Limited and Another Vs. Brojo Nath Ganguly and Another, , whenever an interpretation clause defines a term to include something the definition is extensive. 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 uses and the purpose sought to be achieved by Section 5 read with the object of the Act.

Explanation II to Section 5 says that for the purposes of Sub-section (1), 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. This Explanation was added to explain what is provided in the main part of Section 5(1) of 1986 Act.

A contention was raised by counsel for the Petitioners that term ''tree'' in Explanation I to Section 5 should be understood to mean ''tree'' as defined in Section 2(e) of the Act. Section 2(e) of the Act defines ''tree'' as follows:

In this Act, unless the context otherwise requires,-

(e) ''tree'' means any of the following species of trees - namely,

Sandalwood (Santalum album), teak (Tectona Grandis), Rose wood (Dalbergia Latifolia), Irul (Xylia Xylocarpa), Thempavu (Terminalia Tomantosa), Kampakam (Hopea parviflora), Chempakam (Michelia Chempaca), Chadachi (Grewia Tiliaefolia), Chandana Vempu (Cedrela toona), Cheeni (Tetrameles nudiflora).

Section 2(e) uses the expression ''tree'' to mean species of trees mentioned in that definition. In other words, where an interpretation clauses defines a word to mean a particular thing, the definition is explanatory and prima facie restrictive, and whenever an interpretation clause defines a term to include something, the definition is extensive. As far as Section 2(e) is concerned, legislature has used the expression ''mean'' to make the definition restrictive to the species mentioned in that Section. However, Explanation I to Section 5 uses the expression ''tree shall include any species of tree'' for the purposes of Section 5. Definition clause has also used the expression ''unless the context otherwise requires''. Therefore definition of Section 2(e) has to be understood in the context in which the term ''tree'' has been used. The word ''tree'' may mean one thing in one context and another in other context. For the said reason, same word used in different Section and at different places of a Section of a statute may bear different meaning. Prima facie each component part of the statute gives meaning of that part, and it would be different to other parts: D.N. Banerji Vs. P.R. Mukherjee and Others, ; N. Subramania Iyer Vs. The Official Receiver, Quilon, ; Anand Nivas (Private) Ltd. Vs. Anandji Kalyanji Pedhi and Others, ; and Gramophone Company of India Ltd. Vs. Birendra Bahadur Pandey and Others, . Therefore in order to understand the meaning of a particular word, it cannot be detached from the context. Words and phrases occurring in a statute are to be taken not in an isolated or detached manner, dissociated from the context, but are to be read together and construed in the light of the purpose and object of the Act.

In the Act definition section starts with the expression ''unless the context otherwise requires''. Therefore we have to ascertain as to whether Section 5 bears another meaning to the word ''tree'' in the context under which the particular provision is placed Expression ''unless the context otherwise requires'' came up for consideration before the Supreme Court in Printers (Mysore) Ltd. and Another Vs. Asstt. Commercial Tax Officer and Others, . In the said decision, Supreme Court was considering the scope of Section 2(d) of the Central Sales Tax Act which defines the expression ''unless the context otherwise requires''. Supreme Court held that wherever the words ''goods'' occurs in the enactment, it is not mandatory that one should mechanically attribute to it the meaning assigned to it in Clause (d). So where the context does not permit or where it would lead to absurd or unintended result, the definition of an expression need not be mechanically applied.

Section 4 of the Act, 1986 uses the expression ''restriction regarding cutting, etc., of trees''. It says that 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. Therefore u/s 4 a person has to get the previous permission for cutting trees enumerated in Section 2(e) of the Act. Section 4 is of general application. There is no reference to ''private forest'' or ''cardamom hills reserve'' in Section 4 of the Act. However, u/s 5 there is a specific reference to private forests, which means private forest as defined in the Kerala Private Forests (Vesting and Assignment) Act. There is also reference to cardamom Hills Reserve or any other area cultivated with cardamom. Therefore operation of Section 5 is all together on a different context. Unlike Section 4, Section 5 is meant to prohibit and not restrict cutting any tree in private forests as well as in cardamom Hills reserve or in any other area cultivated with cardamom. It has got a specific object to achieve. Purpose for which the said Section was introduced was that there was indiscriminate felling and destruction of trees in the State of Kerala resulting in considerable soil erosion and destruction and loss of timber wealth in the State. Therefore if trees are cut indiscriminately, apart from trees mentioned in Section 2(e), that will lead to soil erosion and would cause large scale destruction and loss of timber wealth in the private forests as well as in the Cardamom Hills Reserve. Therefore the definition of ''tree'' has to be understood in a different context when we apply Section 5. It is also pertinent to note Section 5 applies to only those lands covered by the Government notification. However for other lands whether it be a private forest or cultivated with cardamom not covered by the notification, Section 4 of the Act applies.

''Tree'' has been defined in Section 2(1) of the Kerala Forest Act to include palms, bamboos, stumps, brush-wood and canes. It is an inclusive definition. Therefore it defines extensively. Object of the Kerala Forest Act is to unify and amend the law relating to the protection and management of forests in the State of Kerala. So also the object of Kerala Preservation of Tree Act is to preserve trees in the State of Kerala and to prevent soil erosion and destruction and loss of timber wealth in the State of Kerala. If all the trees excluding the trees defined in Section 2(e) are cut and removed it will likely to cause soil erosion and also destruction and loss of timber wealth in the State. It is pertinent to note that private forest and Cardamom Hills Reserve, etc., are by very nature of the land susceptible to soil erosion. Land covered in O.P. No. 8209 of 1995 is an area which falls within 60-70 decree slopes. As per land capacity classification, areas with slopes above 45 degrees shall be under permanent vegetation. Indiscriminate felling of trees will eventually lead to precarious soil erosion, silting in the adjacent stream and may even adversely affect the lives and property of the people. Therefore it can be concluded that the tree as mentioned in Section 5 has to be understood in a different context and not in restrictive sense. Therefore definition clause ''unless the context otherwise requires'' is indicative of the fact that the word ''tree'' has to be understood not in restrictive manner in Section 5 of the Act.

Contention was raised by counsel for the Petitioner in O.P. No. 8209 of 1996 that bamboo as such will not come within the definition of ''tree''. Relying on various dictionary meaning of ''bamboo'' such as New Oxford Encyclopedic Dictionary, Lexicon Webster Dictionary, etc., counsel contended it is only a tropical giant grass of genus Bambusa with hollow joined stem; a woody tropical plant of the grass family, and therefore the same cannot be treated as tree. It is difficult to accept the contention. In this context, it will be pertinent to note Indian Forest Act, 1927 is applicable to the State of Kerala as well. It defines tree to include palms, bamboos, stumps, brushwood and canes. So also the Kerala Forest Act, 1961 which defines tree to include palms, bamboos, stumps, brushwood and canes. In other words, Indian Forest Act, 1927 as well as Kerala Forest Act 1961 define tree as to include bamboos as well. It is a sound rule of statutory construction that where there are different statutes in pari materia though made at different times or even expired, and not referred to each other they can be taken and construed together as one system and as explanatory of each other. Therefore there is no necessity of importing any dictionary meaning to the said term. When both the Indian Forest Act as well as Kerala Forest Act give a particular meaning to ''tree'', there is no justification in importing dictionary meaning so as to understand what is bamboo. Therefore it is not possible to accept the contention of counsel for the Petitioner in O.P. No. 8209 of 1995 that Bamboo will not come within the expression of ''tree'' in Explanation I to Section 5 of 1986 Act.

Under the above mentioned circumstances, I do not find any illegality or irregularity in the action taken by the department in refusing permission to the Petitioners. Since both the cases come within the scope of Section 5, Respondents have rightly not granted permission, as trees mentioned do not constitute danger to life or property or the trees are dead, diseased or wind fallen. Original Petitions are accordingly dismissed.