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THE KERALA PROMOTION OF TREE GROWTH IN NON-FOREST AREAS BILL, 2002

A Bill 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.

Preamble. – WHEREAS, it is necessary to maintain environmental stability by cultivation of trees in non-forest areas;

AND WHEREAS, cultivation of new trees are necessary for checking soil erosion and denudation in the enactment areas of rivers, lakes, tanks and canals, and for mitigating floods and droughts;

AND WHEREAS, in order to increase the green cover in the country it is necessary to cultivate trees in all non forest lands also;

AND WHEREAS, in order to meet the requirements of fuel, wood, fodder and small timber to the rural populations it is necessary to promote cultivation of trees in all non forest areas in the State;

AND WHEREAS, it is necessary to establish tree lands wherever possible, for the amelioration of the people and climatic conditions promoting the general well being of the people;

AND WHEREAS, for the constant supply of wood for industrial growth and realization of maximum annual revenue in perpetuity, it is necessary to promote cultivation of trees in all non-forest areas;

NOW, THEREFORE, it is expedient to promote cultivation of trees in non-forest areas in order to fulfill the needs enumerated above;

BE it enacted in the Fifty-third Year of the Republic of India as follows: –

1. Short title, commencement, extent and application. – (1) This Act may be called the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2002.

(2) It extends to the whole of the State of Kerala.

(3) It shall come into force at once.

(4) It shall apply to all non-forest areas in the State.

2. Definitions. – In this Act, unless the context otherwise requires, -

(a)"Collector" means Collector of the District and includes a Revenue Divisional Officer;

(b)"Deputy Conservator of Forests" means a forest officer in charge of a forest division and exercising jurisdiction over the area;

(d) "holder of land" means a person holding any land whether as owner, mortgagee, assignee or otherwise;

(e) "forest development agency" means a society constituted at block level as per the direction of Government to promote forest development and registered as society under the Societies Registration Act, 1860 (Central Act XI of 1860) or under the Travancore Cochin Literary Scientific and Charitable Societies Registration Act, 1955; ( 12 of 1955)

(f) “grama panchayat” means a grama panchayat constituted under the Kerala Panchayat Raj Act, 1994 (13 of 1994).

(g) “grama panchayat area” means the territorial jurisdiction of a grama panchayat;

(h) Local Self Government Institution" means a Panchayat at any level constituted under the Kerala Panchayat Raj Act, 1994 (13 of 1994) or a Municipality constituted under the Kerala Municipality Act, 1994 (20 of 1994);

(i) “municipality” means a municipality constituted under the Kerala Municipality Act, 1994 (20 of 1994);

(j) “municipal area” means the territorial jurisdiction of a municipality;

(k) "non forest area" includes all private lands, village common lands, Government lands, porampoke lands, lands vested, transferred or purchased by the Local Self Government Institutions or lands within the ownership or possession of Government or non Government organization but does not include lands declared or deemed to have been declared as reserve forest under any law for the time being in force and paddy fields;

(l) "prescribed," prescribed by rules made under this Act;

(m) "to fell a tree" with its cognate expression, means severing the trunk from the roots, uprooting the tree and includes bulldozing, cutting, girdling, lopping, pollarding, applying arboricides, burning or damaging a tree in any other manner;

(n) "tree" means any woody plant whether fruit bearing or not and includes bamboos.

3. Rights of holder of private lands. - Every holder of private land shall be free to plant trees in his land as may be appropriate and generally contribute to the increase of tree cover in his land, in addition, to any crop he may have grown over such land.

4. Duties of Local Self Government Institutions. – Notwithstanding anything contained in any other law for the time being in force, the Local Self Government Institution shall promote tree growth in non-forest area and be responsible for, –

a) the cultivation of trees in the lands owned or transferred or vested in them;

b) carrying out census of the existing trees and obtaining whenever considered necessary declarations from all owners or occupants about the number of trees in their lands;

c) development and maintenance of nurseries, supply of seeds, saplings and trees to persons at reasonable price who are required to plant new tress or to replace trees which have been felled;

d) getting planting and transplanting of trees necessitated by construction of buildings, new roads or widening of existing roads or for safe guarding danger of life and property;

e) organisation of demonstrations and extension services for the purposes of this Act and assisting private and public institution in connection with planting and preservation of trees;

f) undertaking or executing such schemes or measures as may be directed from time to time by the Government for achieving the objects of this Act.

5. Duties of forest development agencies. – The forest development agencies shall in addition to their duties and responsibilities enshrined in their constitution shall have the following duties, namely: –

(a) creating a massive people's movement for cultivation of trees on all non forest lands;

(b) make available seeds, saplings and trees at reasonable price;

(c) inform the authorities concerned about the unauthorized felling of trees and unauthorised transit of timber in restricted areas;

(d) such other duties, as may be specified by the forest department or the Collector, as the case may be.

6. Duties of forest department. – Notwithstanding anything contained in any other law for the time being in force, the forest department shall, have the following duties, namely:-

(a) to supply seeds, saplings and trees to all persons who are required to plant new trees or replace trees which have been felled at reasonable price;

(b) to execute all their schemes for tree cultivation through Local Self Government Institutions;

(c) to undertake critical study of the proposals of various Government departments and private bodies for construction of buildings, roads, factories, irrigation works, laying out of electric, telephone, telegraph and other transmission lines with regard to protection of existing trees and planting more trees, wherever possible;

(d) to exercise such other powers and duties as are laid down in this Act or the rules made there under.

7. Duties of Agricultural Department. – The Agricultural Department shall have the following duties, namely: -

(a) development, maintenance and approval of private nurseries, supply of seeds, saplings and trees to persons at reasonable price;

(b) to execute all schemes pertaining to Agriculture department for tree cultivation through Local Self Government Institutions;

(d) to exercise such duties as may be prescribed.

8. Power of the holder of land to cut and remove trees standing in their lands. - Subject to the provisions of sections 9 and 10 of this Act there shall be no restriction for the holder of land to cut and remove the trees standing in their lands and to use or transit such timber.

9. 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 area cultivated with cardamom, by notification in the Gazette, direct not to fell a tree standing in any such area specified in the notification except on the ground that if the tree, -

(a) is dead, diseased or wind fallen; or

(b) is silvi culturally mature, provided it does not occur on a steep slope; or

(d) constitutes obstruction to traffic; or

(e) is substantially damaged or destroyed by fire, lightening, rain or other natural causes.

Explanation. - 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.

(2) No person shall, without the previous permission in writing of the Deputy Conservator of Forest fell any tree in any area specified in the notification under sub-section (1) on any of the grounds specified therein.

(3) Every application for permission under sub-section (2) shall be in such form and shall contain such particulars as may be prescribed and shall be made to the Deputy Conservator of Forest.

(4) The procedure to be followed by the Deputy Conservator of Forest in granting or refusing permission shall be such as may be prescribed.

(5) Any person aggrieved by an order refusing to grant permission may, within ninety days of the receipt of such order, prefer an appeal to the District Collector.

(6) An appeal under sub-section (5) shall be in such form and shall contain such particulars, as may be prescribed.

(7) On receipt of an appeal under sub-section (5) the District Collector shall, after giving the appellant and the Deputy Commissioner of Forest an opportunity of being heard, pass such order thereon as it thinks fit.

(8) The decision of the District Collector under sub-section (7) shall be final.

10. Restriction on transit of timber. – (1) The Government shall, by notification in the Gazette, restrict the transit of timber in and out of a Grama Panchayat area or a Municipal area which is adjoining any reserve forest except by way of a transit permit issued by the Forest Department.

(2) Every application for transit permit under sub-section (1) shall be in such form and shall contain such particulars, as may be prescribed and shall be made to the Deputy Conservator of Forest.

(3) The procedure to be followed by the Deputy Conservator of Forest in granting or refusing permission shall be such as may be prescribed.

(4) Any person aggrieved by an order refusing to grant permission may, within ninety days of the receipt of such order, prefer an appeal to the District Collector and the decision of the District Collector there on shall be final.

11. Penalties. –(1) Whoever contravenes any of the provisions of section 10 or sub-section (2) of section 9 or a direction contained in a notification under sub-section (1) of section 9 or any of the terms and conditions subject to which a permission has been granted under this Act shall be punishable, -

(a) in the case of first offence, with imprisonment for a term which shall not be less than six months but which may extend to two years and with fine which shall not be less than five hundred rupees but which may extend to two thousand rupees; and

(b) in the case of a second or subsequent offence, with imprisonment for a term which shall not be less than one year but which may extend to three years and with fine which shall not be less than five thousand rupees but which may extend to ten thousand rupees.

(2) All offences under the section shall be cognizable.

12. Offences by companies. – (1) Where an offence under this Act has been committed by a company, every person who, atthe time the offence was committed, was in charge of, and was responsible to the company for the conduct of its business, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing in this sub section shall render any person liable to punishment if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of any director, manager, secretary or other officer of the company, such director manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation. – For the purposes of this section, –

(a) "company" means any body corporate and includes a firm, society or other association of individuals; and

(b) "director", -

(i) in relation to a firm, means a partner in the firm;

(ii) in relation to a society or other association of individuals means the person who 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.

13. Powers of Divisional Forest Officer and Collector. – Every Divisional Forest Officer and Collector shall, for the purpose of performing their functions under this 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 of any person and examining him on oath;

(b) requiring the discovery and production of any document;

(d)such other matters, as may be prescribed.

14. Powers of entry and inspection. – The Deputy Conservator of Forest or any other officer generally or specially authorised by the Government in this behalf may, with such assistants, if any, being persons in the service of the Government, as he thinks fit at all reasonable times enter upon any land for the purpose of ascertaining whether any of the provisions of this Act or any of the terms and conditions subject to which any permission has been granted under this Act has been contravened.

15. Power to seize timber and other articles involved in the commission of offence. – (1) Where any officer of the Forest Department not below the rank of Forester or any police officer not below the rank of Sub-Inspector has reason to believe that any tree has been cut or transited in contravention of section 10 or sub-section (2) of section 9 or a direction contained in a notification under sub section (1) of section 9, he may seize the timber of such trees 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 such timber.

Explanation. – The terms "boat" and "vehicle" in this section, section 16 and section 17 shall include all the articles and machinery kept in the boat or vehicle, as the case may be, whether fixed to the same or not.

(2) Every officer 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 Divisional Forest Officer.

(3) On receipt of a report under sub-section (2), the Divisional Forest Officer shall, -

(a) if he is satisfied that the timber mentioned in such report is of any tree cut or transited in contravention of section 10 or sub-section (2) of section 9 or a direction contained in a notification under sub-section (1) of section 9, make a report of such seizure to the Judicial Magistrate of the First Class having jurisdiction over the area in which such seizure has been made;

(b) if he is not so satisfied, make a report of such seizure to the Collector.

(4) The Collector to whom a report is made under clause (b) of sub-section (3) shall, -

(a) if he is satisfied that the timber mentioned in such report is of any tree cut or transited in contravention of section 10, or sub-section (2) of section 9 or a direction contained in a notification under sub-section (1) of section 9, make a report of the seizure of such timber to the Judicial Magistrate of the First Class having jurisdiction over the area in which such seizure has been made;

(b) if he is not so satisfied, order that such timber and any tool, rope, chain or other article or any boat, vehicle or animal seized along with it shall be returned to the person from whom they were seized.

16. Power to release property seized under section 15. – The Deputy Conservator of Forest or the Collector, as the case may be, may release any tool, rope, chain or other article or any boat, vehicle or animal seized under section 15 and in respect of which a report has been made to the Judicial Magistrate of the First Class under clause (a) of sub-section (3) or under clause (a) of sub-section (4) of that section on the execution by the owner thereof of a bond for the production of the property so released, if and when so required, before such Magistrate.

17. Procedure by Magistrate. – Upon the receipt of a report under clause (a) of sub-section (3) or clause (a) of sub-section (4) of section 15 the Magistrate shall take such measures as may be necessary for the trial of the accused and the disposal of the timber and any tool, rope, chain or other article or any boat, vehicle or animal seized along with it, according to law.

18. Procedure as to perishable property seized under section 15. – (1) Notwithstanding anything hereinbefore contained, -

(a) the Magistrate to whom a report is made under section 15 may direct the sale of any property seized under that section, which is subject to speedy and natural decay; and

(b) if, in the opinion of the Deputy Conservator of Forest or the Collector it is necessary to dispose of the property, which is 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 15 make an application to the Magistrate referred to in clause (a) for permission to sell the property by such officer himself and on getting such permission may sell the property himself, remit the sale proceeds into the nearest government treasury and make a report of such sale and remittance to that Magistrate and thereupon such Magistrate shall take such measures as may be necessary for the trial of the accused.

(2) The Magistrate may deal with the proceeds of the sale of any property sold under clause (a) or clause (b) of sub-section (1) in the same manner as he might have dealt with the property if it had not been sold.

19. Saving of power to release property seized. – Nothing hereinbefore contained shall be deemed to prevent the Deputy Conservator of Forest or the Collector from directing at any time the immediate release of any property seized under section 15 and the withdrawal of any charge made in respect of such property after recording the reasons for the same;

Provided that the powers under this section shall be exercised by the Deputy Conservator of Forest or the Collector only for good and sufficient reasons to be recorded in writing.

20. Institution of prosecution. – No prosecution shall be instituted against any person without the sanction of the Deputy Conservator of Forest or the District Collector.

21. Cognizance of offences. – An offence punishable under this Act shall be tried before a Court of the Judicial Magistrate of First Class having jurisdiction and such Magistrate may take cognizance of the offence on a police report.

22. Bar of jurisdiction of civil courts. – No civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter, which is by or under this Act required to be settled, decided or dealt with or to be determined by any officer or authority or the Government.

23. 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 there under.

24. Power to make rules. – (1) The Government 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 of trees which may be permitted to be cut;

(b) the terms and conditions subject to which permission may be granted;

the procedure to be followed by the Collector in the disposal of an appeal under section 9 and 10;

any other matter which has to be or maybe prescribed.

(3) Every notification issued under sub-section (1) of section 9 and every rule made under this section shall be laid as soon as may be after it is issued or made, before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any 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 effect 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 to the validity of anything previously done under that notification or rule.

25. Power to remove difficulties. – (1) If any difficulty arises in giving effect to the provisions of this Act, the Government may, by order published in the Gazette make such provisions not inconsistent with the provisions of this Act, which appear to them necessary for the purpose of removing the difficulty.

(2) Every such order made under this section shall, as soon as may be after it is made, be laid before the Legislative Assembly.

26. Repeal and savings. – (1) The Kerala Preservation of Trees Act, 1986 (35 of 1986) is hereby repealed.

(2) Notwithstanding the repeal of the Kerala Preservation of Trees Act, 1986 (35 of 1986) the provisions of section 4 to 23 of the Interpretation and General clauses Act, 1125 (7 of 1125) shall apply upon the repeal of the said Act.

(3) All investigation pending before any offices or proceedings pending before the Magistrate under the repealed Act may be continued in accordance with the provisions of this Act:

Provided that no person convicted of an offence with respect to anything so deemed to have been done under this Act, shall be subjected to a penalty greater than that which might have been inflicted under the law applicable to such offence, in force at the time of the commission of such offence.

STATEMENT OF OBJECTS AND REASONS

The need for arresting the loss of tree cover and forest area was felt since environmental issues attracted international and national attention in the 1970s. The Constitutional amendment transferring forest from the state list to the Concurrent list and the enactment by Parliament of Forest Conservation Act, 1980 were major steps taken at the national level. Also, because of increasing concern over global warning the dire consequences of loss of biodiversity and soil cover; progressively wider definition of the word "forest" has been given in recent years by Courts. At the State level, attempts were made to supplement the provisions of the Kerala Forest Act, 1961 and the Central Forest Conservation Act, 1980 by enacting laws on private forest, the preservation of trees and the transit of timber. While the preservation and growth tree cover in the former private forest areas are riddled with legal complications, the Kerala Preservation of Trees Act, 1986 and the Kerala Forest Produce Transit Rules, 1975 have in practice proved to be counter productive because of the hassles involved in growing trees, cutting them when appropriate and in transit of timbers. Instead of resulting in more tree cover, they have acted as disincentives to growing trees. This has resulted in non-availability of timber for industry and of bamboo for the once-flourishing bamboo-based cottage industries and handicrafts.

In the interest of (1) increasing tree cover in non-forest areas, biodiversity and prevention of soil erosion, (2) for increasing the availability of raw materials for timber and bamboo based industries, and (3) for increasing income and employment, it is urgently necessary to change the existing laws on trees and transit of timber and encourage farmers to grow trees in their lands, allow free movement and use.

The Bill seeks to achieve the above objects.

FINANCIAL MEMORANDUM

As per the provisions of the Bill the Local Self Government Institutions are duty bound to promote tree growth in non-forest areas in the State. For this all schemes of the Forest and Agriculture Department regarding the promotion of tree growth will have to be implemented through Local Self Government Institutions. Therefore the Bill if enacted and brought into operation could not involve any additional expenditure from the consolidated fund of the State.

Memorandum Regarding Delegated Legislation
1. Clause 6 of the Bill seeks to empower the Government, to specify by rules the duties to be exercised by the Forest Department.

2. Sub Clause 1 of clause 9 of the Bill seeks to empower the Government, not to fell tree standing in private forests, cardamom hill reserve etc.

3. Sub Clause 3 of clause 9 of the Bill seeks to empower the Government to specify the form and particulars of application for permission to cut trees in prohibited areas.

4. Sub Clause 4 of clause 9 of the Bill seeks to empower the Government to prescribe the procedure to be followed in granting or refusing permission.

5. Sub-clause (6) of clause 9 of the Bill seeks to empower the Government to prescribe the particulars, which shall contain in the form of appeal.

6. Sub-clause (1) of clause 10 of the Bill seeks to empower the Government to restrict the transit of timber in and out of any Grama Panchayat or Muncipal area adjoining any reserve forest.

7. Sub-clause (2) of clause 10 of the Bill seeks to empower the Government to prescribe the particulars of application for transit permit.

(8) Sub-clause (3) of clause 10 of the Bill seeks to empower the Government to prescribe the procedure to be followed in granting and refusing transit permission.

(9) Sub-clause 3(b) of clause 15 of the Bill seeks to empower the Government to prescribe the authority to whom the report of seizure to be made.

(10) Clause 27 of the Bill seeks to empower the Government to make provision for removing difficulties arising while giving effect to the provisions of the Act.

(11) The matters in respect of which rules may be made or orders may be issued are matters of procedure or of details and are of routine and administrative nature. Further every rule, made under this Act is subject to scrutiny by the Legislative Assembly. The delegation of legislative power, is thus of a normal character.