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Kerala act 035 of 1986 : The Kerala Preservation of Trees Act, 1986 (Act 35 of 1986)

l >

235

THE

KERALA

PRESERVATION OF

TREES

ACT,

1986

' (Act 35of

1986)

'

CONTENTS

Preamble

,

' Sections

1.

Short

title,

extent and commencement.

2.

Definitions.

3. Authorised officers and

appellate

authorities.

4.

Restriction

regarding cutting, etc.,

of trees.

5. Prohibition of

cutting

of tree in

notified areas.

6.

Application

for

permission.

7.

Appeal.

-

8.

Revision.

9. Penalties.

10.

Offences

by

companies.

11.

Powers

of

authorised officers

and

appellate

authorities.

12.

Powers of

entry and

inspection.

13.

Power

to

seize timber and other articles involved in com— mission of

offence.

14. Power to release

property

seized under section 13.

15

Procedure

by Magistrate.

16. Procedure asto

perishable property

seized under

section

13.

17.

Savmg

of

power

to

release

property

seized.

18. Institution

of

prosecution.

19.

Cogmzance

of offences.

20. Bar of

jurisdiction

of civil courts.

21.

'

Indemnity.

22.

Restxéictlon

regarding cutting, etc., oftrees in

future

assign- men 9.

23.

Power

to make rules.

24.

Laying

of

notifications and

rules

before

Legislative Assembly.

25. Power to remove difficulties.

26.

Repeal

and

saving.

2

fi.'

237

THE KERALA PRESERVATION OF TREES

ACT,

1986

"

(Act 35of

1986)

c

An Act to

provide for

the

preservation of

trees in the State

of

Ke'rala. Preamble—WHEREAS

there

has beenindiscriminate

felling and destruction

of

trees,in the

State of

Kerala

resulting in

consider- able soil

erosion

and destruction andloss ofthe timber wealth of the

State; AND WHEREAS with a. view to

prevent

soil erosionanddes- truction and loss ofthetimber wealth in

the

State, 1tisnecessary to

regulate

the

felling

and destruction

of

trees

in

the

State;

BE

it enacted

in the

Thirty-seventh

Year of the

Republic

of India as follows:—

1.

Short

title,

extent and commencement.——This

Act may

be called

the

Kerala Preservation of Trees

Act,

1986.

(2) Itextendstothewholeofthe

State of

Kerala.

(3) itshallbe

deemed tohavecomeintoforce on the18th day of

June,

1983.

2.

Definitions. —-—In

this

Act,

unless the context

otherwise requires,— (a)

"appellate authority"

means an

appellate

authority appointed

under

sub-section (2) ofsection 3; (b)

"authorised

officer" means an

officer

appointed

under sub-section

(1)

of section

3;

(0)

"owner"inrelationto

any land,

includesa

mortgagee, lessee orother person

havmg right to

possession

and

enjoyment of that

land;

A

(d)

"prescribed"

means

prescribed

by

rules madeunder this ct;

((e)

"tree" means

anyof the

following

species of

trees, namely: Sandalwood

(Santalum

alb11m',)

Teak

(Tectena

grandis),

Rose- wood

(Dalbergia

latifolia),

Irul

(Xylia Xylocarpa),

Themnavu (Ter- miualia

tomantosa),

Kampakam

(I-Iopea

parviflora),

Chempakam (' vIechelia

ehempaca),

Chadachi

(Grewia

t111aefolia),

Chandana vempu (Cedrela

toona),

Cheeni

(Tetrameles

nudiflora).

"Received the assent

of the President on

the lst

day

of

December, 1986 and

published

in

the

Kerala

Gazette,

Extraordinary

No.

1091

datedp lst

December,

1986.

238

3.

Authorised

ofiicers

and

appellate Authorities—(1)

The Government may, by

notification inthe

Gazette,

appoint suchoflicers not below the rank of

a

Ranger

as

they

think fit

to be authorised officers

for the purposes

of

this

Act and may assign

to them such local

limitsasthe

Government

think fit.

(2) The Government may,

by

notification inthe

Gazette. appoint suchofficersas

they

think fittobe

appellate

authorities for the

purposes

of

this

Act and may assign

to them such

local limits as theGovernment thinkfit.

4.

Restriction

regarding cutting,

etc., of

trees—(1)

No person shall.

without the

previou

permission in

writing ofthe

authorised ofiicei, cut.

uproot or bu.n, or

causetobe cut.

uprooted or

burnt. any

tree. 'f

t

2)

The

permission

under

sub-section

(1)

shall not be refused l —..

(a) thetreeconstitutes a

danger tolifeor

property; or 1b) thetree is

dead,

diseasedorwindfallen:

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

condition for the

grant

of such

permission

the effective

regeneration

of an

equal

number of the

same or other suitable

species of

trees; or »

to) such

cutting istoenablethe

owner oftheland inwhich the tree stands to use the area

cleared or the

timbercutfor

the construction of a

building

for his own use.

(3) Noperson shallcut or

otherwise

damage, or

cause

to be cut or

otherwme

damaged,

the branch of any

tree:

l'rov1ded that the

prOViSions

of this Sub-section shallnotbe deemed to

prevent

the

priming

of any

tree

as

required by

ordinary agricultural or

horticultural

practices.

(4) No

person shall,

Without the

previous permission inmi - ing oftheauthorised

officer,

destroy

any plant ofanytreeordo any act which

diminishes the value of any such

plant.

(5)

Nothing

contained in

sub-section

(1) orsub-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:

Prowded that where such

compound

exceedsonehectare in extent, theprowsmiisofthissub-section shall

apply

only in

respect of an

extent

of. one

hectare

immediately surrounding the

residential building.

239

5 . Prohibition

of

cutting of

tree in

notified areas.——,(1)Not- withstanding anythung

containedin

any law forthetime

being in force, orinany

judgement,

decreeor

order of

any court,

tribunal or other

authority,

or in

any agreement

or other

arrangement,

the Government may, with a View to

preservmg the

tree

growth

in private

forestsorin the

Cardamom-Hills Reserveorinany

other areas cultivated

with

cardamom,

by

notification

in the

Gazette, direct thatno tree

standing in

any such area

specified inthe

not-1- fication

shallbe

cut,

uprooted,

burnt or

otherWise

destroyed

except on the

ground

that— ~

(a)

the

tree

constitutes

a

danger

to life

or

property;

or

(b) thetreeis

dead,

diseasedorwindfallen~ Provided

that the

provisions ofthis

sub-section shall

not be deemed to

prevent the

pruning ofany tree as

required by

ordinary agricultural or

horticultural

practices.

(2) Noperson shall,

Withoutthe

prewous

permission inwrit-. ing of theauthorised

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 speufied

therein. Explanation

l.—For thepurposes ofthis

section, theterm

"tree" shall include any species

of

tree. Explanation

IL—Forthepurposes of

sub-section

(1), the expression "private

forest" m'eans anyland

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.

6.

Application for

permzsszon.—7(1)Every

application

for

per- mission under section 4or

section 5 shall be in

such form and shall contain such

particulars

as

may be

prescribed

and

shall be made to the authorised officer.

(2) The

procedure tobefollowed

by theauthoused officer in

granting

or

refusing

permission

under section4or section

5 shall be such as

maybe

prescribed.

7.

AppeaI.—(1)Any person aggrieved

by an

order

refusing

to grant

permission

under section 4orsection 5may,within

ninety days ofthe

receipt ofsuch

order,

prefer an

appeal to the

appellate authority:

'

Provided that

the

appellate

authority may admitan

appeal

pre- ferred after

the

expiry

of

the said

period of

ninety

days if

it

is satis- fied that the

appellant

had

suifiment

causefornot

preferring

the appeal

withinthesaid

period.

240

(2) An

appeal

under.

sub-section

(1)

shall

be insuchform and shallrcontaiii such

particulars

as

may

be

prescribed.

(3) On

receipt ofan

appeal

under

sub-section

(1), the

appel-

'4 late

authority

shall,

after givmg

the

appellant

an

opportunity

of being

heard. passsuchorder thereonasit

thinksfit.

8.

Revmon,——(1)The

Government

may,

either sue motuorany application by any person aggrieved by anorderof the

appellate authority

under section 7, callforandexaminetherecordofany order

passed

by

the

appellate authonity

for the

purpose

of

satisfying themselves astothe

legality, propriety

or

regularity

ofsuchorder and pass such order thereon as

they

think

fit.

(2) TheGovernment shallnot oftheirown

motion

revise any

order'under

sub-section (1)

if that order has been

passed more than

three

months

previously.

(3) An

application

under

sub-section

(1)

by an

aggrieved person shall be made Within a

period

of

sixty days

fromthedateon which the orderofthe

appellate

authority was

communicated to him:

Provided that

the Government may adinit an

application

made after the

expiry

of the said

period of

Sixty

days.

if

they

are satisfied that the

applicant

had suffiCient

cause for not

making the

application within that

period.

(4) An(Jl'del

prejudicial toa

person shallnotbe

passed

under sub-section

(1}

unless

«that person has

been 'DJUl

a

reasonable opportunity of

sliowmg

cause

against such

order. . '

Explanation—An

order

declining tointerfere

shall, forthe purposes ofthis

sub-section, bedeemedtobean

order

prejudicial to a

person.

9. Pcnalties.——Wlioever contravenes

any of

the

provisions

of section 4

or'sub-section

(2)

of section 5 or a direction

contained

in a

notification

under

sub-section

(1)

of

section 5 or

any

of

the

terms and

conditions

subject towhicha

permission

has been

granted under this

Act shall be

punishable,—

(a) inthecaseoffirst

offence, with

imprisonment

for a.term which

s'nalinotbeless

than Six

months butwhich may extend to two

years, and With fine which shall not be less than five hundred rupees but which may extend totwo

thousand rupees; and

(b) in the caseof a

secondor

subsequent

offence, with im- prisonment for atermwhich shallnotbe less thanone

yearbut

13' which may extendtothree years, and

withfine

which shall not be « less than onethousand rupees but

which may extend to five thousand rupees.

-..:-\_.

is '

241

10.

Offences by companies.—(1)Where anoffence

under this Act hasbeencommitted

by a.

campany,

every person who, atthe time the

offence was

committed,

was in

charge of,

andwasres- ponsible tothecompanyfortheconduct of its

busmess,

shall be deemed tobe

guilty oftheoffence and

shallbeliable tobe

proceeded against and

punished accordingly:

Provided that

nothing inthissub-section shall render any person hable to

punishment ifhe

proves

that the offencewascom- mitted

withouthis

knowledge or

that hehadexerc1sed alldue diligence to

prevent thecomm1ssion ofsuch

offence.

(2)

Notwithstanding anything

containedin

sub-section

(1),

where any offence under this Acthasbeen

committed

by a company andit is

proved thattheoffencehasbeencommittedw1th the consent or

connivance

of, or

is attributable to

any

neglect on

the part~of any director, manager, secretary or

other

officerof the company, such

director, manager, secretary or

other officer shallbe deemed to be

guilty

of

that

offence and

shallbe

liable tobe

proceeded against and

punished

accordingly. Explanation—For thepurposes of this

Section,— (a)

"company"

means

any body corporate and

includes a firm,

society or

other associationof

individuals; and (b)

"director",—

(i) in

relation toa

firm,

means a

partner inthe

firm;

(ii) in

relationtoa

society or

other

association of individuals,

meansthe

personwho is

entrusted, under the

rules

of

the

society

or

other

association, with the

management

of the

affairs

of

the

society

or other

association,

as the case

may be.

11.

Powers

of

authorised

officers

and

appellate

auth01'1ties.— '

Every

authorised officerand

appellate authority

shall, forthe purpose of

performing

hisor

its functions underthis

Act, have all

the

powers

of a. civil court while

trying

a

suit

under the

Code

of Civil

Procedure,

1908

(Central

Act

5 of

1908),

in

respect

of the following

matters,

namely:— (a)

summoning and

enforcing

the

attendance ofany person and

examining

him on

oath; (b)

requiring

the

discovery and

production

of any document; (c)

receiving

evidenceon

affidavit; and

.

((1) such

other matters as

may be

prescribed, 25/2484/B.

242

:

12.

Powers

of entry.

and

inspectwn.—The

authorised

officer or any

other

ofiicer

generally or

specially

authorised

by theGoverrunent in this behalf may,withsuch

assistants, ifany, being persons

in

the' service of the

Governmm-t,

as he thinks

fit, at

all reasonable tunes enter upon anylandforthe

purpose of

ascertaining

whether

any of the

provisions

of this Act or

any of

the

terms and conditions subject towhich any permission hasbeen

granted

underthis

. Act

has

been contravened.

13.

Powerto

seize timber and other

articles

involved in commisswn

of

offline—(1)

Where any oflicer

of

the Forest Department notbelowthe rankof

Foresteror

any Police Ofiicer not

below the rank of Sub

Inspector

has reason to believe

that

any tree has

been cutin

contravention of

section 4 or sub-section

(2)

of section 5 or

a direction contained

in a

notification under sub-section (1; of

section

5, hemay seizethetimberofsuchtree

together with all

tools, ropes, chains and other articles

used in the commission of such

offence

and

all

boats,

vehicles

and animals used

for

carrying SJCh timber. \ Explanation—The

terms

'fboat"

and "vehicle"

in this

section. se

tion

14 and. section 15 shall include

all

the articles and

machinery kept in theboat or

vehicle, asthecase

maybewhether fixedtothe same or

not. '

.

.

(2)

Every

oliicer

seizing any timber under sub-section

(1)

shall

place

on

such timber a

mark

indicating

that

the same has been so

seized and

shall,

as soon

as

may be,

make

a

report

of such seizure to

the

authorised

oflicer. '

(3) On

receipt ofa

report

under

sub-sectibn (2), the authorised oflicer

shall,— '

(a) if he is

satisfiedthatthetimber

mentionedinsuch report is ofany freeoutin

contravention ofsection 4or

sub-section

(2) of

section5or .adirection contained ina, notification

under sub-section (1) ofsection 5, make a

report ofsuchseizuretothe ,ludicial

Magistrate ofthe

First Class

having Jurisdiction overthe area in

which such seizure has been

made; -

(b) ifheisnotso

satisfied, makea

report

of such seizure to

such

authority'as may be

prescribed.

(4) The

authority to

which a

report

is made under clause

(b)

01

sun-section

(3)

shall,—

(a) ifitis

satisfied

that the

timber

mentioned

in

such report is of any treecut

incontravention

of

section 4 or

sub-section

(2) of

section 5or a

direction contained in a

notification

under sub—section

(1)

of

section

5,

make a

report

of the

seizure

of such timber to

the

Judicial

Magistrate

of the

First Class

having

jurisdiction rover the area in which such

seizure has

been

made;

-.

, -.

— {K

- '

'

243

(b) if itisnot so

satisfied,

orderthat suchtimberand

any tool, rope, chainorother article or anyboat,

vehicleoranimal seized

along withitshall bereturned tothe

person from whom they were seized. . .

14. Power torelease

property

seized under

section J8.——The authorised

officer

may release any tool,

rope, chain

or.

other article or

any boat,

vehicle oranimal

seized

under

section. _13 and in

respect ofwhicha

report hasbeenmade to

the Judicial Magistrate oftheFirst

Class under

clause (a) ofsub-section (3) or clause

(a) of

sub-section

(4) of

that

section, ontheexecution

by the

owner thereofofa bondforthe

production of the

property so released, ifandwhenso

required,

before such

Magistrate.

15. Precedure

by MagistratB.—Up0n

the

receipt ofa

report under

clause

(a)

of

sub-section

(3) or

clause

(a) ofsub-section

(4)

of

section

13,

the

Magistrate

shall takesuchmeasures as

may be necessary for

the

trial oftheaccused and the

disposal

ofthetimber and any tool, rope, chain or other article or

any boat,

vehicle or animal seized

along

with

it,

according tolaw.

16.

Procedure asto

perishable

property

seized

under section

13.—-7(1) Notwithstanding anything

hereinbefore

contained,— '

(a)_ the

Magistrate to whom a

report is made

under section 13 may direct the sale of any

property

seized undér that section,

whichis

subject to

speedy and

natural

decay; and -

(b)

if,

in

the

opinion

of the

authorised

officer,

it is necessary to

dispose of the

property,

whichis

subject to

speedy

and natural

decay.

such officer

shall

immediately

after,

and in any

case not later

than one

month

from,

the date of

Report

under section 13 make an

application tothe

magistrate

referred

toin

clause

(a) for permission tosellthe

property by suchofficer himselfandon

getting such

permission

may

sell

the

property

himself.

remit

the sale proceeds intothenearest Government

Treasury and makea

report of such sale and remittance tothat

Magistrate

and

thereupon such

Magistrate

shall take such

measures as

may be

necessary for the trial of the

accused.

(2) The

Magistrate

maydealwith the

proceeds of thesaleof any

property

sold under

clause

(a) orclause

(b)

of sub-section

(1)

in the

same manner

ashe

might

have

dealt with the

property ifit had not been sold.

17.1

Sawing of power torelease

property seized—Nothing hereinbefore

contained

shall be deemed to

prevent

the authorised officer from

directing

at any time the

immediate

release

of

any property'seized

under section13and the

withdrawal of

any-charge made in

respect

of

such

property:

'

. - r

Provided that

the

powers under

this section shall be exercised by the

authorised officer

only for

good and

suflicient reasons tobe recorded in

writing

and with the

previo'us approval

in

writing

of the Divisional Forest

Officer concerned.

244 ' '

18. Institution

of prosecution—No prosecution

shall

be instituted

against any

person without the sanction ofthe

authorised officer.

,

19.

Cognizame

of

ofiences.—No

court inferior to

that of a Judicial

Magistrate ofthe

First

Class shall

try any offence under this Act.

20. Bar

of jurisdiction

of

civil Gonna—No

civil court shall have

jurisdiction to

settle,

dec1deordeal with any question orto determine any

matter whichis

by orunder thisAct

required to be

settled,

decided or dealt Withorto

be determined

by any oflicer or

authority

or the

Government.

21.

Indemnity—No

suit,

prosecution

or other

legal proceedings shall

lie

against

the

Government

or

any officer or

authority

or

any other

person for

anything which

is

in

good

faith done or

purporting to

have been done under this

Act or

any rule

or order made thereunder.

22. Restriction

regarding cutting, etc, of

trees in

future assignments—Notwithstanding anything

contained inanylaw for the

time

being in

force, any assignment

after

the commencementof this

Act, ofland

belonging tothe

Government,

under anylaw for the time

being

in force shall be

subject

to

the

condition that

the -

assignee

shall not,

withoutthe

previous permission in

writing ofthe authorised

officer, cut,

uproot or

burn,

or cause to be

cut,

uprooted or

burnt, any tree

standing

on

such land

at

the time of such assignment, andthe

provisions ofthis Act

shall

apply in relation to

such

permission

as if

they apply

in relation to

a permission under section 4.

23.

Power to

make

rules—(1) TheGovernment may, by notification in the

Gazette,

make

rules for

carrying

out the

purposes of this

Act.

(2) In

particular, and

without

prejudice to the

generality of the

foregoing power,

such rules may provide

for—-

(a) the

girth oftrees which maybe

permitted to be

cut; '

(b) thetermsandconditions

subject to

which

permission may be

granted;

(c) the

procedure tobefollowed

by the

authorised

olficer '

before

granting or

refusing permission;

(d) the

procedure tobe

followed

by the

appellate authority in the

disposal

of an

appeal

under section

7;

(e) any

other matter whichhasto

be, or

may be,

prescribed.

10

v) '—

245

24.

Laying

of

notifications

amd.

mics

before Legislative Assembly -—Every

notification

issued under sub-section (1) of section 5 and

every

rulemadeunder section

23

shallbe

laid, assoon as

may be after it *s issued or

made,

before the

Legislative

Assembly wh1le

it

is in session

for a total

period

of

fourteen

days

which may be

comprised

inonesessionorin two successive

sessions,

and

if before the

expiry

of the

session

in which it isso

laid orthesession immediately following, the.

Legislative

Assembly

makesany modification in the

notification or

rule

or decides that the

notification or rule

should

not be

issued

or

made,

the

notification

or

rule shall thereafter have

efiect

only

in such

modified

form or

be

of no

effect, as

the

case

may be;

so however

that any

such

modification

or annulment shall be

without

prejudice

tothe

validity

of

anything previously doneunderthatnotificationorrule.

25.

Power toremove

d/ifiiculties .—-(1)

If any difliculty

arises m giving

effecttothe

provisions of thisActthe

Government

may, by

order

published inthe

Gazettemakesuch

provisions not

inconsi- stent with

the

provisions of

this

Act.

which

appear

to them necessary for

the purpose of

removing

the

difficulty:

(2)

Every suchordermadeunderthis

section

shall, assoou as

may be

after it

is

made,

be laid before the

legislative Assembly.

26.

Repeal

and

saving.———(1)

The Kerala Restriction on

Cutting and Destruction of

Valuable

Trees

Act,

1974

(7

of

1974),

and

the Kerala Preservation of Trees

Ordinance,

1986

(65

of

1986)

are hereby repealed.

(2)

Notwithstanding the

repeal of

the

Kerala

Preservation of Tiees

Ordinance,

1986

(65

of

1986),

anythin

done or

deemed

to have been

done

or

any action taken or deem to have

been taken under the said Ordinance shall be

deemed to have been

done

or taken

under

this Act:

Provided

that no

person convicted of

an

offence with

respect

to anything so

deemedtohave beendoneunderthis Act,

shall be

subjected

to a

penalty greater thanthatwhich

might

have

been inflicted

underthe

law

applicable to

such

offence, inforce at the

time of the

commission

of such offence:

Provided further that

nothing

contained inthis

section

shall render any

person liabletobeconvicted ofan

oifence in

respect

of anything done oromittedtobedone by himafter the let

day of August, 1983and

beforethe30th day

August, 1983 andafter the 6th

day

of

January,

1984

and before the 15th

day

of

February,

1984.