Kerala High Court
State Of Kerala vs Vijayan on 17 December, 2018
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
MONDAY ,THE 17TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940
CRP.No. 78 of 2012
AGAINST THE ORDER/JUDGMENT IN CMA 38/2009 of D.C.& SESSIONS
COURT,THODUPUZHA
REVISION PETITIONER/S:
1 STATE OF KERALA
REPRESENTED BY THE DISTRICT COLLECTOR,
IDUKKI CIVIL STATION, P.O.PAINAVU, IDUKKI DISTRICT.
2 THE DIVISIONAL FOREST OFFICER
MUNNAR.
BY ADV.SRI.SANDESH RAJA.K., SPL. G.P. FOREST
RESPONDENT/S:
VIJAYAN
S/O. PEETHAMBARAN, MANALEL HOUSE, P.O.KUNJITHANNY,
DEVIKULAM TALUK, IDUKKI DISTRICT, PIN-685 566.
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
05.12.2018, THE COURT ON 17.12.2018 PASSED THE FOLLOWING:
CRP 78/2012
2
O R D E R
The State is on Revision challenging the judgment of the District Judge, Thodupuzha in C.M.A. No.38/2009. The challenge is with regard to the order of confiscation of a lorry bearing No.KL-6D 1242 belonging to the respondent herein, being set aside under Section 61D of the Kerala Forest Act, 1961 (for short "Forest Act").
2. The facts in brief are thus:
On 18.06.2009 the staff of Neriamangalam Forest Range, on receipt of a confidential information, reached the Neriamangalam-Maniyanpara road, near CMI Ashramam, and found logs of Elavu timber stocked by the side of the road, without claimants. Mahazar was prepared and the logs were seized. O.R.No. 2/2009/NFS was registered at the Nagarampara Forest Station. On 20.06.2009 a person named Nazar was questioned, owing to his being seen under suspicious circumstances. On questioning, he admitted that the timber belonged to him and were transferred to the site in a lorry bearing No.KL-6D 1242 on 16.06.2009 and out of CRP 78/2012 3 fear of interception at the Forest Check Post, it was unloaded at the place before the Forest Officers found it. The respondent herein named Vijayan, was the owner of the lorry allegedly used for transporting the contraband. He had contacted the above-mentioned Nazar from the mobile phone belonging to his wife. The statement of Nazar was recorded and subsequently on 02.07.2009 the lorry involved in transporting of the logs was seized at Thalakodu Check Post by the Forest Range Officer, Neriamangalam. The driver Saji and his helper Shamsudheen were taken into custody. On questioning Shamsudheen, he admitted being in the lorry on 17.06.2009 while transporting the logs involved in the case. He also gave a statement that the lorry was being driven by Saji at that point in time. Mahazar was prepared after seizure of the lorry and the Authorised Officer proceeded to confiscate the lorry under Section 61A of the Forest Act. Further, the investigation revealed that the logs seized near the CMI Ashramam contained 11 logs of Elavu, cut and removed from a Patta land in Konnathady Village, illegally. O.R.No.12/2009 was CRP 78/2012 4 registered. The land from where the Elavu tree was cut, was assigned to Aley, W/o Kuriakose, Cherukunnel House, Konnathady as per L.A.No.700/68 comprised in Sy.No.1/1 of sub-division 77/1 and is presently in the possession of John T.John, Chris Mathew and Joseph T.John. The stump of the Elavu tree in the property was also inspected by the forest officials and they were convinced that the seized timber logs were from the said property. Notice was issued under Section 61B of the Act to the respondent and Nazar on 19.08.2009. In the meanwhile, the respondent moved this Court by filing W.P.(C) No.21593/2009 for interim custody of the lorry and the Writ Petition was disposed of with a direction to the Authorised Officer to complete the proceedings under Section 61A of the Forest Act, within two months from the date of receipt of the judgment. Thereafter, notices were also issued to the owner of the land from where the tree was cut and after hearing them on 28.08.2009, and on verification of the records, the Authorised Officer came to the conclusion that the lorry belonging to the respondent was used for illegal CRP 78/2012 5 transport of 11 Elavu tree logs cut from a Patta land and that the timber belonged to the Government and that no transit permit as per the Kerala Forest Produce (Transit) Rules, 1975 (for short "the Transit Rules") was obtained, and thereby, a forest offence was committed using the lorry and that it was liable for confiscation.
3. This order was challenged before the District Judge, Thodupuzha by filing C.M.A. No.38/2009. The main defence taken by the respondent before the learned District Judge was that no transit pass was required for transporting Elavu logs and that it was exempted under the Transit Rules. It was also argued that no permission is required for cutting and removing of Elavu logs. In view of this, it cannot be said that an offence under the Transit Rules has been committed, authorising confiscation under Section 61A and it was also submitted that at the most, the Government could have proceeded against the owner of the property under the provisions of the Land Conservancy Act, but not under the Forest Act. The learned Government Pleader had come out with the argument that the CRP 78/2012 6 Elavu trees were standing in the Patta land and the trees were reserved in the name of the Government and transporting such timber, without prior permission, is an offence under the Forest Act and therefore proceedings under Section 61A of the Forest Act is justified.
4. The learned District Judge observed that forest produce would also include timber, which is seen in the forest land and there is a presumption that the forest produce cut and removed from the forest area and the burden is squarely upon the possessor of the produce to prove that it is not a forest produce and the presumption can be drawn under Section 69 of the Act. The learned District Judge goes on to conclude that in the instant case the tree was cut not from any reserved or private forest, but from a Patta land, which was assigned to a private person. The learned District Judge was not impressed by the argument that there was violation of the Transit Rules as no permission was obtained for transporting the timber. The learned District Judge observed that the only violation pointed out is under the Transit Rules, but since the Elavu CRP 78/2012 7 is a tree that has been excluded from the list of trees which require the permit for transit, no offence under the Transit Rules is attracted. Moreover, the trees were admittedly removed from a private land, and therefore, it was not proper on the part of the forest officials to have invoked the provision for confiscation of the lorry under Section 61A of the Forest Act. It is further observed that even if the Act is committed by the respondent, it will not fall under the Forest Act or the Rules made thereunder, and the only action that could be taken was under the provisions of Kerala Conservancy Act. The confiscation order passed by the Authorised Officer under Section 61A was therefore, set aside by the learned District Judge.
5. It is this order that stands challenged by the State in this Revision.
6. Going by the facts of the case, it admitted that the timber seized were those of an Elavu tree cut from a Patta land comprised in L.A.No.700/78. There is also no dispute that the lorry belonged to the respondent herein. CRP 78/2012 8
7. It is true that the State had proceeded against the lorry on the premise that there is violation of the Transit Rules. The learned Special Government Pleader appearing for the Forest Department admits that for removal of Elavu tree from private property, it does not require transit permit. In the instant case, the tree was cut from the land assigned by the Government with a condition that the tree standing therein could not be cut and removed without prior permission. The learned Special Government Pleader submits that the cutting of trees from the land assigned by the Government, in violation of the conditions will come squarely under the provisions of the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995 (for short "1995 Rules"). The said Rules came into effect from 20.09.1995 as per S.R.O.No.1279/1995. Rule 3 states that all trees standing on lands assigned to be absolute property of the Government. Rule 4 prohibits any person from felling, lopping, cutting or maiming or maltreating any tree, which is the property of Government, without CRP 78/2012 9 prior sanction in writing granted by the Divisional Forest Officer having jurisdiction over the area. Section 7 provides for the penalties, which states that on infringement of the provisions in Rule 4 shall be liable for conviction before a Magistrate, extending upto imprisonment for six months or fine extending upto Rs.100/- or both. Hence, it is adequately clear that the cutting of a tree from a Patta land assigned by the Government is an offence under Rule 4 of the 1995 Rules and is liable for penalty.
8. Section 2(e) of the Forest Act defines a "forest offence" as an offence punishable under the Act or any Rules made thereunder. S.R.No.1279/1995 very clearly states that the 1995 Rules is made in exercise of the powers conferred by clause (f) and (g) of Section 76 of the Forest Act and therefore violation of Rule 4 of the said Rules would amount to a 'forest offence' as defined under Section 2(e) of the Act. Section 76(f) reads thus:
"76. Additional power to make rules.- The Government may by notification in the Gazette make rules:-
xx xx CRP 78/2012 10
(f) to regulate or prohibit the felling, lopping, cutting, maiming or otherwise maltreating of trees standing on land temporarily or permanently assigned, the right of Government over which has been expressly reserved in the deed of grant or assignment of such land;"
Hence, where a forest offence is believed to have been committed, involving a vehicle, it is liable for confiscation under Section 61A(1), which reads thus:-
"61A. Confiscation by Forest Officers in certain cases.- (1) Notwithstanding anything contained in the foregoing provisions of this chapter, where a forest offence is believed to have been committed in respect of timber, charcoal, firewood or ivory which is the property of the Government, the officer seizing the property under sub-section (1) of Section 52 shall, without any unreasonable delay, produce it, together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence, before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Conservator of Forests."(emphasis supplied)
9. The argument of the learned Counsel for the respondent that the offence, which is not committed in a forest area or a forest land is not sufficient to attract the provisions of Section 61A of the Forest Act, would therefore, fall to ground. I find support in the decision of this Court in Conservator of Forests, Kollam v. CRP 78/2012 11 T.M.Sukumaran, 2010 (3) KHC 363, wherein referring to Section 52 and Section 2(f) of the Forest Act, this Court has held that the seizure of the property in relation to a forest offence is not confined to 'forest produce' as defined under Section 2(f) of the Act, but also applicable in the case of 'timber' or 'trees' in respect of which a forest offence is believed to have been committed. In the above case, the fact was that the logs carried in the vehicle were cut and removed from an Anjili tree situate in a land presumably a forest, but assigned and patta issued with restriction in cutting and removing of such trees. Such trees belonged to the Government and the persons in whose favour assignment had been made over such land had no right to cut and remove such trees and therefore, confiscation was held to be valid.
10. In the instant case, the Forest Officials proceeded to confiscate the vehicle belonging to the respondent under the premise that the provision of Transit Rules has been violated, as no permit was obtained. The impugned order at Annexure 1 nowhere mentions regarding the CRP 78/2012 12 violation of 1995 Rules. Hence, the proceedings as per Annexure 1 will not be sustainable, because the forest offence alleged to have been committed by the respondent was not as described in the impugned order, or in the notice that was issued to the respondent under Section 61B of the Act. However, quoting of wrong provisions will not result in vitiating the entire proceedings. An opportunity will have to be given to the respondent to set up his defence in answer to the accusation made against him.
11. Hence, the C.R.P. is allowed and the judgment of the District Judge, as well as the confiscation proceedings of the Authorised Officer, are set aside. The Authorised Officer is directed to proceed afresh against the respondent by issuing a notice to him for answering the charges in violation of the provisions of 1995 Rules. An opportunity shall also be given to the respondent to put up his defence before the Authorised Officer. No costs.
Sd/-
ASHOK MENON
dkr JUDGE
CRP 78/2012
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APPENDIX
PETITIONERS' ANNEXURE:
ANNEXURE I COPY OF THE ORDER NO.M8-4233/09 DATED 31.10.2009 OF
THE DIVISIONAL FOREST OFFICER, MUNNAR