Forest Laws -- Flawed Legislative Interventions - Few Thoughts in the

Wake of State of Kerala v. Kumari Varma - 2011 (1) KLT 1008

(By Boby Jacob, Advocate, Mannarkkad)

Introduction

The High Court of  Kerala has with prudence, categorically clarified the law “Kerala Forest  (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (EFL Act for short)”, removing a perceptible irritant among the forest laws, bringing solace to the farming community. Rightly so, since the farming community has been at the receiving end from legislative interventions, under the guise of protecting forests, putting the farming community on tenterhooks perenneally and denying them the right to enjoy the usufructs of successful litigations, besides the substantive rights accrued to them under the earlier laws. Such was their anguish and anxiety, that many among the farming community were reluctant and afraid to treat even the exempted “private forests” to be assets, that could be passed on to their progeny. Or has it become the proverbial “forbidden wealth.”?

This author would like to share a few thoughts on the impact of the judgement and on the “legislative interventions” through the plethora of laws that pervades the “forest arena” in Kerala.

The  inspiring  judgement

Let me now refer to the Division Bench ruling of the High Court of Kerala as reported in “2011 (1) KLT 1008”. The judgment was rendered by the Division Bench, consisting of their Lordships the Chief Justice Mr. Justice Chelameswar and Mr. Justice P.R. Ramachandra Menon, in the appeal filed by the State against the Single Bench decision on a Writ Petition, preferred by an agriculturist of Kannur Dist., Mrs. Kumari Varma regarding the notifications under EFL Act.

The impugned notifications issued by the State had declared the vesting of 24.28 hectares (notified as 35.105 hectares vide an earlier notification dated 25.1.2008) of Mrs. Kumari Varma’s property, in pursuance of the EFL ordinance. These vesting notifications had come up, after, Mrs. Kumari Varma had been involved in a long drawn out litigation from 1979 onwards with regard to the vesting notification under the Kerala Private Forest (Vesting and Assignment) Act, 1971 and before the property was restored in deference to the final order of the Apex Court. The judgment of the Supreme Court, rendered on 4.8.2006, had brought an end to the litigation that started in 1979, under the Kerala Private Forests (Vesting and Assignment) Act, 1971. As fate would have it, the EFL notification were promulgated, much to the chagrin of Mrs. Kumari Varma.

The judgment has to be appreciated, as it has with right perspective, analysed the EFL Act. The way in which the Judges have approached the issues emanating, has to be applauded, for many a time, it is the correct attitude that matters while resolving a dispute. The EFL Act proceeds on the very definition of the expression “ecologically fragile land” and the judgment very rightly has tackled the expression. The Judges have after an elaborate discussion found the expression “forest land” in the EFL definition to exclude those lands which are used principally for the cultivation of crops of long duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites or residential buildings and surroundings, essential for the convenient use of such buildings. Their Lordships have not invented anything or cooked up any innovative theories to arrive at the conclusions. In fact the Judges have interpreted the definition, in conformity with the law as it was framed in the Kerala Private Forests (Vesting and Assignment) Act, 1971 and with the support it has gathered from the EFL Act, whereunder Section 2 (c) and (d) provide for the definitions of the expression “forest” and “land”.

The State had, very curiously enough tried to destroy the farmer’s interest by canvassing a theory that the court should accept the present situation of the land, when it is found to be deprived of the plantation, after the vesting notification and after the farmer was prevented or restrained from entering the property. So much so, a farmer, who under compulsion could not continue with the cultivation or maintain the plantation, had to suffer for no fault of his own and would have to haplessly watch the same land being taken over as “ecologically fragile land”. The High Court has very succinctly and categorically negatived this argument of the State, by declaring that there must be an intention on the part of the owner of the plantation land to abandon the land and permit the land to become a forest land and in the instant case there was no intention on the part of the owner to abandon the cultivation of cardamom and infact was prevented from cultivating, due to the denial of possession on a wrong interpretation of the Kerala Private Forests (Vesting and Assignment) Act, 1971. The court warned the State, that it cannot be permitted to take advantage of a wrong committed by it in depriving the owner of the land, the legal rights to cultivate the lands by wrongly invoking Private Forests Act, 1971.

The judgment has thus brought in tranquility to the farming community, though there are forebodings, so long as the executive harbours prejudices against the farming community and there could be no restraints on its attempts to introduce laws, to promote its image vis-a-vis forests. That is exactly what the history reveals on the subject.

History  of  laws  on  forests

There have been various laws on forests, promulgated since 1949, with the avowed intention of preserving and promoting forests wealth in the State. However, on an impartial analysis of the history, it is so clear that the intention apart, the executive as well as the legislature have totally failed to realize the objects, it set for itself. After independence, starting from the Madras Preservation of Private Forests Act (MPPF Act) 1949, the legislature had framed several laws viz.. Kerala Forests Act 1961, Private Forests (Vesting & Assignment) Act, 1971, Preservation of Trees Act 1986, Promotion of Tree Growths in  non-forests Area Act 2005 and  Kerala  Forests(Ecologically Fragile Land) Act, 2003 (Now Act 21/2005).

Many of these laws introduced at various point of time were intended to satisfy certain protagonists in order to promote Forest Wealth, as they would like to have it. Among the Acts, the Kerala Private Forests (Vesting and Assignment) Act, 1971 is a case for study, as it shows many intrinsic drawbacks, in the matter of drafting and presentation. This Act in its present form was preceeded by several ordinance numbering more than a dozen, over a span of 25 years. The earliest ordinance on the subject was, in fact, made without even providing for appeal rights to the aggrieved parties. Thereafter, the executive brought in amendments after the High Court struck down the law, to provide for appeals and indeed, several other amendments had to be made time and again, to fill up the lacuna, as and when it was revealed. The Government at various intervals, subjected the law to various kinds of modifications, even to the extent of bestowing “review rights” on it, with the apparent objective of overcoming the negative judgments from the forest tribunals on the alleged basis of concessions/manipulations on the part of the Government officials.  A queer piece of legislation, manifestly enacted to find agricultural land to be distributed mainly among the landless agricultural labourers, but was later trumpeted to be a shield to save forest wealth. These two extremely contradictory postures in the make up of a legislation, in fact, served none.

The Kerala Preservation of Trees Act, though not a forest law basically, had all the trappings of a forest enactment. Its intention was also to restrict cutting of trees and had even provided for prohibiting cutting of trees from a notified area, which was formerly a private forest or cardamom cultivated area etc. This law ultimately was misused by the forest department to harass people who had genuinely promoted tree growth in their premises. Instances were there when cases were booked against even old women under the Act, who perhaps had sold the trees for some dire necessity in their house - hold. Many habitual offenders could circumvent the rules by putting up sheds to get permission for cutting trees, masquerading them as house compounds.

The latest legislation viz. Kerala Tree Growth Promotion Act also wanted to promote preservation of trees, but without trying to reconcile the space for the two Acts viz, Kerala Preservation of Trees Act and Kerala Tree Growth Promotion Act.

EFL Act was introduced in the wake of a purported call for preservation of eco-systems and had the blessings of environmentalists. However the so called forest preservationists, made it another piece of legislation that almost follows the Kerala Private Forests (Vesting and Assignment) Act, 1971. What is undone under the 1971 Act, is sought to be done by the 2003 enactment. Nevertheless, the legislature has adopted the 1971 enactment-provisions, to meet the objectives in the 2003 Act. Even while going in pursuit of the EFL enactment, it took about two years to reach the present composition viz. Act 21/2005. The structural deficiencies of the enactment are many, as the checks and counter checks are mostly done through the bureaucratic set up. The management part of the enactment, is yet to be put in place properly and relies presently on the frugal official set up of the department.

Present  Situation

A critical audit of the Kerala Forests (Vesting and assignment) Act, 1971 has not been done so far, at least as far as I know. Nobody knows how much of land has been taken over by the State under the 1971 enactment and how much of land have been “distributed to agriculturists and agricultural labourers for cultivation’,’ the statutory objective described in the preamble. The Government has truly and definitely failed to realise the objective. It cannot certainly boast about, when it has not been able to restore possession of the lands exempted u/S.3 (2) and 3 (3) of the Act 1971, even after final judgment has been rendered by the Apex Court. There are of course, many properties not taken over, even after the “dismissal of petitions” having been accepted by the Apex Court and which continue to be with the litigants, who earn profits, with the active connivance of the officials. 

The EFL law was enacted with the sole objective of denying the successful litigants under the 1971 enactment, from getting their property restored. The department of forests, unofficially, laments its inability to manage the lands it has already notified and there are many instances where lands continue to be with the owners.

A performance audit vis-a-vis both these enactments could be revealing and shocking.

Farming  community’s  predicaments:

The farmers who were given to understand that their aspirations are going to be met, through the 1971 legislation, have lost their hopes and have been destined to be either perenneal litigants or live at the mercy of the forest department for no-objection certificates for anything and everything. Their travails continue unabated. Those successful litigants faced the music, when the State amended the Act to bring in review applications. Again after appeals and finality through the Apex Court judgment, the irritants that hampered them were Sec. 5 notifications under Kerala Preservation of Trees Act 1986 and EFL Act, 2003. Those who chose the litigation route, a legitimate right under law, have perished, while the others, the lucky ones, saved their lands by managing the powers-that-be.

Misplaced  enthusiasm  and  unnecessary  interference

The pervading attitude, right through the spectrum of private forest law, has been to enlarge the availability of agricultural lands and to provide the agriculturists and labourers enough land to cultivate. However over the years, the executive tried to adopt a dubious stance by becoming the preservationists of forest wealth, using the very same laws. The 1971 enactment, that nationalised the private forests, without compensation, in fact, opened the flood gates to many unscrupulous elements to alienate and destroy the real forests, by the time the Act became operational. Rather than saving the forests or facilitate the farmers, what eventually happened was the denuding of forest wealth. Had there been compensation, 1971 Act could have earned universal approval and prevented back-door alienations.

Among the laws enacted to protect the forest wealth, the pioneer law viz. Madras Preservation of Private Forests Act 1949, could be acclaimed as the best among the lot, for its realistic and practical approach and the vision to safeguard the forest wealth. The Act and rules had a system that was almost perfect in the matter of cutting and removal of trees. The law had provided only selection felling, with a rider to regenerate tree growth and should the owner fail to do so, the owner would be penalised and would no more be eligible for cutting permit. The system had been fine-tuned by the officials of that era, when a cutting permit could be procured only after an elaborate process. The rigours undergone by an applicant is referred to in detail by the famous Novelist Malayattoor Ramakrishnan, (I.A.S.) in his award winning novel “yanthram”, based on his actual experience, as a Sub Collector in State Service. In the light of such a law, the Kerala Preservation of Trees Act, 1986 and Kerala Promotion of Tree Growths in non-forests area Act, 2005 would have become unnecessary and superfluous. Indeed, forest wealth was meticulously protected and preserved, with a handful of personnel (Karyasthas or managers of yester - years) by the erstwhile landlords of the western ghat and in fact, their autocratic dispensation was held in awe, as they could deny even a pack of firewood to the women of that time. Now, even with a healthy number of personnel in the department of forest, protection is a rarity, while denudation of forest wealth is the common feature. In fact more the laws to guard the forests, more the acts of violence that deprive it.

Profit  makers  in  the  wake  of  new  laws

This author, while going through the laws on forests, is surprised by the discretionary powers given to the forest officials, in the matter of issuing certificates.    It would only be a subject of speculation, as to how many of these officials have really visited the nook and corners of the forests, under their jurisdiction. No wonder on the rise in the quantity of allegations, every time a new law is promulgated, when exemptions are granted on the certifications made by empowered officials. The farmer or the people at large are always left in the lurch and nobody bothers about them.

Judgements keeping the door open-no finality:

It is a matter of inspiration and joy to read the great analytical wisdom shown by their Lordships in 2011 (1) KLT 1008, while correctly interpreting the EFL Act. However the Division Bench’s passing comment viz. that it is open to the State to notify the land as “ecologically fragile land”, if it is so as on today, throws a spanner into the enthusiasm generated. It is this space that is thrown open, that could propel the over enthusiastic officials to create mischief and some legislative wizards in the law department would seek the creation of another law.

Legislation - restraint  and  caution  required :

The present day legislative exercises are often done without adhering to the basic tenets and parameters laid down over the years. There is no proper survey to evaluate the need of a law and its possible impact on the community. Many a time laws are promulgated as ordinances and it is only after years the legislature takes up the concerned Bill for discussion and enactment. It is only those enactments that are preceeded by elaborate discussion and the modifications, pursuant to it, that can make the law withstand the test of time. Let it be remembered that the Courts have often referred to the parliamentary discussion to interpret the law properly.

Conclusion

It is in the context of a plethora of laws that seldom reflect the will of the people and relate to their desire, the High Court’s judgment has to be appreciated and applauded.  Not because it brought solace to the farming community, but because it has, while holding on to the basic legal principles, putforth a refreshing attitude which is non - partisan and just.

Pray Kumari Varma, may not be allowed to suffer, for she has not become a litigant out of choice. But the powers - that - be are not likely to allow Kumari Varma to live in peace.