Promotion of Tree Growth in Non-Forest Areas of Kerala

Promoting Tree Growth in Non-Forest Areas of Kerala: A Legal Analysis of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 and its Interplay with Allied Legislations

Introduction

The State of Kerala, renowned for its rich biodiversity and verdant landscapes, has historically grappled with balancing developmental needs and environmental conservation. The promotion of tree cover, both within and outside designated forest areas, is crucial for maintaining ecological equilibrium, preventing soil erosion, and ensuring sustainable resource availability. The Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 (hereinafter "the 2005 Act")[1] represents a significant legislative initiative in this domain. Enacted with the stated objectives to "promote cultivation of trees in non-forest areas of the State, in order to increase green cover, preserve bio-diversity and arrest soil erosion and to increase availability of timber and bamboo for industry,"[2] this Act ostensibly marked a shift from a purely restrictive regime towards encouraging tree cultivation by private landowners. This article undertakes a comprehensive analysis of the 2005 Act, examining its key provisions, its relationship with pre-existing legislations such as the Kerala Preservation of Trees Act, 1986,[3] and the impact of judicial interpretations on its implementation, drawing significantly from the provided reference materials.

Legislative Framework Prior to the 2005 Act

Before the enactment of the 2005 Act, the primary legislation governing tree felling outside forest areas was the Kerala Preservation of Trees Act, 1986 (hereinafter "the 1986 Act"). The Statement of Objects and Reasons for the 1986 Act highlighted concerns over "indiscriminate felling and destruction of trees" potentially leading to "quick denudation of the forest growth and consequent soil erosion, land slides, flood, etc.," and being "detrimental to ecological balance."[4]

The 1986 Act imposed significant restrictions. Section 4 thereof prohibited the cutting of specified tree species (as defined in Section 2(e)) in general areas without written permission from an authorised officer.[5] A more stringent regime was established under Section 5, which provided for total prohibition of cutting trees of "any species" in notified areas (such as private forests or cardamom cultivation areas), except under specific circumstances like danger to life or property, or if the tree was dead, diseased, or windfallen, and even then, only with prior permission.[6] The distinction between the scope of Section 4 (limited to trees defined in Section 2(e)) and Section 5 (inclusive of "any species of tree" due to Explanation I) has been affirmed by the Kerala High Court.[7]

Furthermore, rules such as the Kerala Forest (Prohibition of Felling of Standing Trees of Land Temporarily or Permanently Assigned) Rules, 1995 (hereinafter "the 1995 Rules"), framed under the Kerala Forest Act, 1961, also imposed conditions on felling trees on lands assigned by the government. The Kerala High Court in One Earth One Life v. Ministry Of Environment And Forests[8] noted that these statutes operate for different objects and purposes, but collectively aim for ecological balance and soil protection, necessitating strict interpretation against violators.

The Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005: A Paradigm Shift?

Objectives and Rationale

The 2005 Act was introduced with a clear intent to promote tree cultivation in non-forest areas. As observed by the Kerala High Court in Ouseph Kuriakose v. Divisional Forest Officer Kothamangalam, the legislature, in its wisdom, enacted the 2005 Act "relaxing the restrictions as to cutting of trees in non notified areas" compared to the 1986 Act.[2] The preamble itself underscores its promotional rather than purely preservational objectives: "to promote cultivation of trees in non-forest areas of the State, in order to increase green cover, preserve bio-diversity and arrest soil erosion and to increase availability of timber and bamboo for industry."[2] This indicates a legislative intent to encourage landowners to view trees as a manageable and economically viable resource, thereby fostering greater tree cover.

Key Provisions: Rights of Owners and Regulatory Mechanisms

The cornerstone of the 2005 Act is Section 6, which delineates the "right of owners to cut and remove trees in non-notified areas in non-forest land." Section 6(1) stipulates: "Notwithstanding anything contained in any other law for the time being in force or in any judgement, decree or order of any Court, or in any custom, usage or contract, but subject to the other provisions of this Act, every owner of non-forest land in a non-notified area shall have the right to cut and transport any tree, other than Sandalwood (Santalum album) trees, standing on his land."[9]

This provision grants a significant right to landowners, albeit with the notable exclusion of sandalwood. The process involves submitting a declaration in Form No. 1 as prescribed under Rule 3 of the Kerala Promotion of Tree Growth in Non-Forest Area Rules, 2011, to the concerned Range Forest Officer.[10] The officer is expected to inspect the property and verify the details.[10] The emphasis on "non-notified areas" is crucial, implying that areas specifically notified for stricter protection (either under the 2005 Act itself or potentially under other enactments like the 1986 Act) may not benefit from this liberal regime.

The Kerala High Court in M.J.Joseph v. State Of Kerala reiterated that the 2005 Act relaxed restrictions on cutting trees in non-notified areas, citing Ouseph Kuriakose.[11]

Notified Areas under the 2005 Act

While Section 6 provides for rights in non-notified areas, the 2005 Act also contains provisions for notified areas. Section 7 of the 2005 Act deals with penalties for contravention of the Act, including cutting specified trees from a notified area without permission. This was highlighted in Sukumaran & Others v. State Of Kerala, where the Public Prosecutor argued that cutting trees from a notified area under the 2005 Act without permission would constitute an offense under Section 7.[12] This suggests that the 2005 Act, while promoting tree growth, retains mechanisms for stricter control in ecologically sensitive or specifically designated non-forest areas.

Interplay with Other Laws and Special Conditions

The Kerala Preservation of Trees Act, 1986

The 2005 Act, particularly its non-obstante clause in Section 6(1), aims to override other laws. However, the continued applicability and interplay with the 1986 Act require careful consideration. While the 2005 Act relaxes restrictions in "non-notified" non-forest areas, the 1986 Act's provisions, especially Section 5 concerning "notified areas" for preservation (which may include private forests or cardamom hills), could still hold force for those specific areas unless explicitly superseded or harmonized. The term "notified area" under the 2005 Act itself also needs to be clearly delineated from areas notified under the 1986 Act.

Land Assignment Rules and Government Grants

A significant area of complexity arises with lands assigned by the government or held under historical grants, often containing specific conditions regarding tree rights. The Thomas Philip series of cases extensively deals with this issue.[13][14][15][16] The petitioner in these cases, holding land under a grant from the Travancore Government, sought permission to fell rosewood and teak trees, relying on Section 6 of the 2005 Act. The government contended that the Kerala Grants and Leases (Modification of Rights) Act, 1980 (hereinafter "the 1980 Act") applied, and conditions in the original grant deed reserving rights over "royal trees" to the government remained operative.[13]

The High Court, in these cases, had to balance the rights conferred by Section 6 of the 2005 Act against the pre-existing conditions of the grant and the provisions of the 1980 Act. Section 3(A) of the 1980 Act allows grantees to appropriate certain trees subject to payment of seigniorage, while Section 4(1) also pertains to seigniorage.[13] The Court found that even if felling is permissible, the liability to pay seigniorage for reserved species might persist if the grant conditions or the 1980 Act so dictate.[14] This implies that the "right to cut and transport" under Section 6 of the 2005 Act is not absolute and can be qualified by specific conditions attached to the land's tenure, particularly concerning "royal trees" or those for which the government has reserved rights.

The observation in One Earth One Life[8] regarding the applicability of the 1995 Rules to assigned lands, requiring assignees to preserve trees mentioned in the patta (assignment deed), further underscores that the 2005 Act's general provisions may be tempered by specific obligations arising from the nature of land tenure.

Forest (Conservation) Act, 1980 and National Environmental Ethos

While the 2005 Act focuses on non-forest areas, its implementation occurs within a broader national environmental jurisprudence. The Supreme Court's landmark judgment in T.N Godavarman Thirumulpad (87) v. Union Of India And Others[17] established critical principles for forest conservation, including compensatory afforestation and the Net Present Value (NPV) for diversion of forest land. It reinforced the Public Trust Doctrine, asserting that natural resources are held in trust by the government for public use.[17]

Similarly, Nature Lovers Movement v. State Of Kerala And Others[18] emphasized the need for comprehensive schemes for soil conservation and compensatory afforestation. While the 2005 Act aims to promote tree growth which aligns with these broader goals, any large-scale felling, even if permissible under the Act, must not contravene the spirit of environmental protection and sustainable development that these apex court judgments champion. The objectives of the 2005 Act, such as arresting soil erosion and preserving biodiversity, are consistent with this national ethos.

Judicial Interpretation and Enforcement Challenges

The judiciary has played a crucial role in interpreting the scope and application of the 2005 Act. In Jopu John v. Divisional Forest Officer,[10] the Kerala High Court dealt with a challenge to the rejection of an application under the 2005 Act for felling teak trees. This case highlights the procedural pathway and the scrutiny applied by authorities.

In Ouseph Kuriakose,[2] the rejection of an application was based on several grounds, including incorrect tree specifications, the age of a tree, trees being near a reserve forest boundary potentially causing soil erosion, and alleged violation of other rules. The court's examination of these reasons demonstrates the balancing act between the landowner's rights under Section 6 and the authorities' environmental concerns. The dismissal of an appeal on grounds of delay also points to procedural adherence.[2]

The case of K.P Thomas v. State Of Kerala & Anr.[19] raised issues regarding procedural lacunae in a related (though not explicitly the 2005) Act concerning seizure and prosecution for timber-related offenses, particularly concerning transportation. While the specific context differs, it signals potential challenges in the enforcement framework surrounding tree felling and timber transport, which could also affect the implementation of the 2005 Act.

The overarching judicial approach, as seen in One Earth One Life,[8] leans towards a strict interpretation against violators to prevent wanton waste of forest and tree resources, emphasizing public interest in ecological balance.

Consideration of Other Reference Materials

The provided reference materials also included cases with limited direct bearing on the substantive law of tree growth promotion in Kerala. The State Of Kerala And Another v. K.P Poulose[20] primarily concerns arbitration law, specifically the powers of the court to extend time for making an award and grounds for setting aside an award under the Arbitration Act, 1940. While it involves the State of Kerala, its subject matter is distinct from tree preservation or promotion legislation.

Similarly, Joseph Kurian Philip Jose v. State Of Kerala[21] deals with criminal liability for the sale of adulterated liquor, interpreting sections of the Indian Penal Code and the Kerala Abkari Act. This case, while significant in criminal jurisprudence, does not intersect with the legal framework governing tree growth or felling.

These cases, though part of the provided corpus, do not directly inform the analysis of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005, beyond illustrating general legal principles or processes within the Kerala judicial system.

Conclusion

The Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005, represents a legislative effort to encourage tree cultivation in non-forest lands by granting owners greater rights to harvest trees, particularly in non-notified areas. This marks a conceptual shift from the predominantly restrictive regime of the earlier Kerala Preservation of Trees Act, 1986. The 2005 Act aims to balance the economic interests of landowners with the broader environmental objectives of increasing green cover, preserving biodiversity, and arresting soil erosion.

However, the implementation of the 2005 Act is fraught with complexities, primarily arising from its interplay with other existing legislations. The rights conferred under Section 6 are not absolute and can be significantly conditioned by provisions in laws like the Kerala Grants and Leases (Modification of Rights) Act, 1980, and by specific terms in land assignment deeds or grants, especially concerning "royal trees" or payment of seigniorage. The distinction between "notified" and "non-notified" areas under various enactments also requires clarity for effective application.

Judicial review continues to shape the contours of this legislation, with courts tasked to harmonize the promotional aspects of the 2005 Act with enduring environmental safeguards and pre-existing governmental rights over certain tree species or lands. The challenge lies in fostering a genuine increase in tree cover through private initiative while ensuring that this does not inadvertently lead to the degradation of ecologically sensitive areas or undermine the state's legitimate claims over valuable timber resources on granted lands. Achieving the delicate balance intended by the 2005 Act requires consistent administrative application, clear regulatory guidelines, and continued judicial oversight sensitive to both private rights and public environmental interests.

References

  1. The Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 (Act 30 of 2005).
  2. Ouseph Kuriakose v. Divisional Forest Officer Kothamangalam (Kerala High Court, 2019), referring to the Act's purpose. See also 2020 (6) KLT 419.
  3. The Kerala Preservation of Trees Act, 1986 (Act 35 of 1986).
  4. State Of Kerala v. Abdul Ali (Supreme Court Of India, 2013), quoting Statement of Objects and Reasons of the Preservation of Trees Act, 1986.
  5. Ibid, referring to Section 2(e) and Section 4 of the Preservation of Trees Act, 1986.
  6. Ibid, referring to Section 5 of the Preservation of Trees Act, 1986.
  7. The Range Officer/Authorised Officer Kerala Forest Department, Kerala Forest Office Range Office, Devikulam P.O., Idukki 685613. v. The Tahsildar Devikulam, Devikulam P.O., Idukki 685613 (S) (Kerala High Court, 2016); The Range Officer v. Munnar Tea Garden Residency (Kerala High Court, 2016), citing Joseph v. State of Kerala (2005 [4] KLT 504).
  8. One Earth One Life v. Ministry Of Environment And Forests (Kerala High Court, 2018); One Earth One Life, Represented By Its Legal Cell Director, Tony Thomas, Palakkad District v. Ministry... (Kerala High Court, 2018).
  9. Section 6(1), The Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005. As cited in Ouseph Kuriakose v. Divisional Forest Officer Kothamangalam (Kerala High Court, 2019).
  10. Jopu John v. DIVISIONAL FOREST OFFICER (Kerala High Court, 2024).
  11. M.J.JOSEPH v. STATE OF KERALA (Kerala High Court, 2023).
  12. Sukumaran & Others v. State Of Kerala (Kerala High Court, 2010).
  13. Thomas Philip v. Forest Range Officer, Forest Range Office And Others (2021 SCC ONLINE KER 1244, Kerala High Court, 2021); Thomas Philip v. Forest Range Officer, Erumely & Others (Kerala High Court, 2021).
  14. Thomas Philip Review v. Forest Range Officer And Others (2021 SCC ONLINE KER 15669, Kerala High Court, 2021).
  15. State Of Kerala v. Thomas Philip (2016 SCC ONLINE KER 2420, Kerala High Court, 2016).
  16. The series of cases involving Thomas Philip consistently discuss the interplay between the 2005 Act, the 1980 Act, and original grant conditions.
  17. T.N Godavarman Thirumulpad (87) v. Union Of India And Others (2006 SCC 1 1, Supreme Court Of India, 2005).
  18. Nature Lovers Movement v. State Of Kerala And Others (Supreme Court Of India, 2009).
  19. K.P Thomas v. State Of Kerala & Anr. (Kerala High Court, 2011).
  20. The State Of Kerala And Another v. K.P Poulose . (1973 SCC ONLINE KER 22, Kerala High Court, 1973).
  21. Joseph Kurian Philip Jose v. State Of Kerala . (1995 SCC CRI 20, Supreme Court Of India, 1994).