Kerala High Court
Rajan, S/O.Ramankutty vs State Of Kerala on 20 December, 2022
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
TUESDAY, THE 20TH DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944
CRL.MC NO. 4323 OF 2013
PETITIONER/S:
RAJAN, S/O.RAMANKUTTY
AGED 52 YEARS
S/O.RAMANKUTTY, VELLARA HOUSE, ATTAPPALLAM KARA, KUMILY
VILLAGE, IDUKKI DISTRICT.
BY ADVS.
SRI.G.HARIHARAN
SRI.PRAVEEN KUMAR PRAYAGA
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
2 FOREST RANGE OFFICER
FOREST RANGE, KUMILY.P.O., PIN-685 509, PEERMADE TALUK.
3 THE TAHSILDAR
PEERMADE TALUK, PEERMADE.P.O., PIN-685 531.
BY SRI.T.JAYAN (FOREST DEPARTMENT)
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
20.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC NO. 4323 OF 2013
1
BECHU KURIAN THOMAS, J. CR
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Crl.MC No.4323 of 2013
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Dated this the 20th day of December 2022
ORDER
Petitioner challenges the criminal proceedings initiated by the Forest Range Officer, Kumily, as OR No.29/2013, alleging offences punishable under the Kerala (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995 (hereinafter referred to as 'Rules, 1995').
2. Petitioner claims to be in possession of 0.2934 hectares of land in Survey No.222 of Kumily Village in Peermade Taluk, Idukki District, which is alleged to have been obtained by him as per a settlement deed No.3700[1]/2011 of Sub Registry Office, Peermade. Petitioner claims to have obtained permission from the Tahsildar, Peermade, on 21.05.2013 to cut and remove two Rosewood trees from the property situated in Survey No.222 of Kumily Village in Peermade Taluk. Based upon the permission so granted, petitioner cut the Rosewood trees standing on his land, and while the same was being transported, the 2 nd respondent intercepted them and initiated criminal proceedings on 11.07.2013.
3. Petitioner contends that no offence as alleged under CRL.MC NO. 4323 OF 2013 2 the Rules 1995 arises, since the trees standing on his absolute property, allegedly assigned to his predecessors, had never been reserved. It was also contended that even otherwise, petitioner had the authority and permission to cut and remove the Rosewood trees standing on his property, as is evident from Annexure II. It is the further case of the petitioner that the aforementioned Rules do not apply to the petitioner and that the prosecution has been initiated, ignoring the dictum laid down by this Court in Augustine Mathew & Another vs. State of Kerala [2009 (3) KHC 179].
4. A statement is filed by the 2 nd respondent, wherein it is pleaded that the property formed part of a tea estate called 'Amaravathy Estate', which was held by a company and that it is assumed that the company obtained the said estate by virtue of a Kuthakapattam grant. It was also stated that out of the total extent, the company had sold a large portion to one Sri.Subrahmanya Ayyar. The specific pleading in the statement was that "the land might have been obtained by the company for promoting tea cultivation by way of grant, (kuthakapattam) by the erstwhile Maharaja of Travancore as per the rules passed on 25.02.1923". It was also stated that the land that falls under the kuthakapattam grant attracts the provisions of the Kerala CRL.MC NO. 4323 OF 2013 3 Grants and Leases (Modification of Rights) Act, 1980 and the ownership of tree vests with the Government and not with the petitioner. The respondent pleaded that since the Rosewood trees cut by the petitioner belonged to the Government, even though the land was assigned to him, petitioner had violated the forest laws and rules and as he is not the real owner of the trees, he had no right to remove the Rosewood trees standing on the land. Ann. IV is the criminal proceeding initiated against the petitioner and challenged in this petition.
5. I have heard Sri.G.Hariharan, learned Counsel for the petitioner as well as Sri.T.Jayan, learned Government Pleader representing the Forest Department and have considered the rival contentions.
6. Though Annexure IV does not refer to any specific provision of law as having been violated by the petitioner, except for a vague reference, to violation of Rules 1995, I proceed to consider the case assuming that the petitioner had violated Rules 3 & 4 of the aforementioned Rules 1995. It is trite law that, in order to attract the penal provisions of the Rules, if a tree is cut and removed from a land which was the subject of a grant earlier, the trees ought to have been expressly reserved in the deed of grant or assignment. As held in Augustine CRL.MC NO. 4323 OF 2013 4 Mathew & Another vs. State of Kerala [2009 (3) KHC 179], the trees ought to have been reserved by the grant for the application of the aforesaid Rules.
7. In the instant case, there is nothing on record to show that the property is situated on land covered by any grant or that any tree was reserved at the time of the grant. Further, even the respondents are not certain about any such reservation of trees at the time of the grant. In fact, the respondents are not even certain about any grant itself. In the absence of any material to show that the trees were cut and removed from a property which was assigned by the Government and in the absence of any material to show reservation of any tree by the Government, the proceedings against the petitioner initiated as Ann. A-IV is without any basis and is an abuse of the process of the court. Therefore, the registration of a crime against the petitioner, alleging violation of the Rules is baseless.
8. Notwithstanding the above, the learned Government Pleader argued that the trees have been cut and removed without permission from the Forest Range Officer as contemplated under the provisions of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005. Even though the CRL.MC NO. 4323 OF 2013 5 occurrence report does not refer to a violation of any provisions of the aforesaid statute, still, since an argument is raised, the same is also considered.
9. Ann. A-II is a permission allegedly obtained by the petitioner to cut and remove the trees. A reading of Ann. A-II reveals that it is not a permission, but a report issued by the Tahsildar to the Forest Range Officer dated 21-05-2013 specifying that the land is not a reserved forest or a private forest and is also not situated under the cardamom hill reserve area. The report, also, states that it is the absolute property of the petitioner situated in Kumily Village of Peermade Taluk. Thus it is evident that the land from which the Rosewood trees were cut and removed was a non-forest and a non-notified land which belonged absolutely to the petitioner.
10. In this context, it is apposite to mention that in the year 2005, State of Kerala enacted the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 (hereinafter referred to as 'Act of 2005', for short). The object of the Act of 2005 was to promote the cultivation of trees in non-forest areas of the State in order to increase the green cover, preserve bio-diversity, arrest soil erosion and increase the availability of timber and bamboo for industry. The said Act is applicable to all non-forest CRL.MC NO. 4323 OF 2013 6 lands. The Act gives a right to every owner of non-forest land to plant trees on his land. The statute also gives a right to every owner of non-forest land situated in a non-notified area, subject to the provisions of the Act, the right to cut and remove trees standing on such land, except the sandalwood tree. Section 6 of the Act of 2005 which gives the aforesaid right reads as follows:
6. Right of owners to cut and remove trees in non-notified areas in non-forest land.- (1) Notwithstanding anything contained in any other law for the time being in force and 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 tree, standing on his land:
Provided that the provision of this sub-section shall not apply to trees, if any, reserved by the Government at the time of assignment of such land or trees standing on any land notified under section 5 of the Kerala Preservation of Trees Act, 1986 (35 of 1986) or the areas notified by the Custodian under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands ) Act, 2003 (21 of 2005).
(2) For the purpose of this Act the Government may, by notification in the Gazette, appoint such officers not below the rank of a Forest Range Officer as they think fit to be Authorised Officers (referred to as 'Authorised Officer' in this Act) and may assign to them such local limits as the Government think fit.
(3) The Government may, with a view to preserving tree growth in the interest of protecting the ecology or in public interest by notification in the Gazette direct that no tree standing in any area of non-forest land specified in the notification shall be cut, uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes a danger to life or property or is wind fallen:
Provided that the small holders in the area notified under this CRL.MC NO. 4323 OF 2013 7 sub-section are free to cut and remove any tree except the specified trees.
Provided further that the small holders in the area notified under this sub-section may cut and remove any specified tree other than sandalwood only with the prior permission in writing of the Authorised Officer and such prior permission shall not be required for the cutting and removal of trees except specified trees:.
Provided also that the owners other than small holders in an area notified under this sub-section may cut and remove any tree other than sandalwood tree only with the prior permission in writing of the Authorised Officer and such permission shall not be required for the cutting and removal of trees mentioned in the Schedule.
Provided also that such permission mentioned in the second and third provisos shall not be refused by the Authorised Officer if the tree constitutes a danger to life or property or is wind-fallen:
Note:- For the purpose of this sub-section all the mangrove areas or cardamom or coffee plantations shall be deemed to be notified areas.
(4) No owner including a small holder shall cut or remove any sandalwood tree in any non-forest area. Such cutting or removal may be done only by the Forest Department in the manner as may be prescribed.
(5) Where a specified tree is to be cut or any timber of a specified tree is to be transported from any non-forest land to any other place, the owner of such tree shall, before cutting the tree or transporting the timber, as the case may be, file before the Authorised Officer having jurisdiction over the area, a declaration containing details such as the survey number of the land from which the tree is to be cut, number of trees, species of trees, quantity of timber and the place to which such timber is being transported, either directly or send it by registered post with acknowledgment due.
(6) Every declaration filed under sub-section (5) shall be acknowledged by the authorised officer forthwith and a copy of the declaration so acknowledged shall accompany the timber during its CRL.MC NO. 4323 OF 2013 8 transport:
Provided that if acknowledgment from the Authorised Officer is not received within twenty days on receipt of the declaration, the same shall be deemed to have been received, if the trees are to be cut and removed from a non-notified area:
Provided further that if timber of a specified tree cut as per sub-section (3) is to be transported from a non-forest land within the notified area, necessary inspection shall be conducted by the Authorised Officer and if it is found permissible, he may issue a transport permit in such form as may be prescribed, which shall accompany the timber during its transportation.
(7) The cutting and removal of trees standing on non-forest areas, owned, controlled or vested in a Local Self Government Institution and its disposal shall be governed by such rules, as may be prescribed.
(8) An appeal against the order of refusal of permission by the Authorised Officer may be preferred before the concerned Divisional Forest Officer/Wild Life Warden within such time and in such manner as may be prescribed.
Explanation.- For the purpose of this Act, the term 'timber' wherever used shall include firewood also.
11. A reading of the above provisions indicates that from 2005 onwards, though every owner of a non-forest land in a non-notified area shall have the right to cut and transport any tree other than a sandalwood tree standing on his land, power is also given under section 6(3) of the Act of 2005, to the Government, to notify trees specified in the notification and standing in any area, that shall not be cut or removed unless the tree constitutes a danger to life or property. The said sub- CRL.MC NO. 4323 OF 2013 9 clause is an exclusion carved out of the main provision and confers power upon the Government to notify trees that shall not be cut and removed, except in certain circumstances and with the permission of the authorised officer. However, it is noticed from the Schedule to the Act that the Government has notified trees that can be cut and removed without permission, instead of the trees that cannot be cut and removed. Though prima facie, the notification issued is not what is contemplated by Section 6(3) of the Act of 2005, the said question does not arise for consideration in this case, and hence I leave it at that.
12. Concededly, the property from where the rosewood trees were cut and removed is situated in a non-notified area. There is nothing on record to show that trees were standing in a forest land, and even the respondents have no such case. Thus the property is a non-forest land and situated in a non-notified area.
13. The statute has created a category of trees called specified trees which term is defined in Section 2(e) of the Act of 2005. Amongst the category of trees included in the definition of 'specified trees' is Rosewood (Dalbergia Latifolia). The significance of the term 'specified tree' as defined in Section 2(e) is evident from Section 6(5) of the Act of 2005. It is stipulated in the said sub-clause that a specified tree standing in CRL.MC NO. 4323 OF 2013 10 a non-forest land can be cut and transported only if the owner of such tree had filed or submitted, by registered post, a declaration, to the Authorized Officer having jurisdiction over the area. The said declaration must contain details such as the survey number of the land from which the tree is to be cut, the number of trees, species of trees, the quantity of timber and the place to which such timber is being transported. Section 6(6) of the Act of 2005 also stipulates that the declaration must be acknowledged by the Authorized Officer and as per the proviso to the said sub-clause, if the acknowledgment is not received within twenty days of receipt of the declaration, it shall be deemed to have been received, and the trees can be transported.
14. The term 'Authorised Officer' has also been prescribed by the statute in Section 6(2) of the Act of 2005. It is evident from a reading of the said provision that the officer appointed must be not below the rank of a Range Officer, who shall act as the Authorised Officer. By notification dated 04.10.2016, as SRO No. 712/2016, the Government has notified the Forest Range Officer and the Assistant Wild Life Wardens in charge of Wild Life Ranges as Authorised Officers within the areas of their jurisdiction under Section 6(2) of Act, 2005. Thus it is not the CRL.MC NO. 4323 OF 2013 11 Tahsildar who is the Authorised Officer under the Act of 2005 but it is the Forest Range Officer or the Assistant Wild Life Wardens in charge of Wild Life Ranges as per section 6(2) of the Act of 2005.
15. When 'specified trees' are to be cut and transported from a non-forest land situated in a non-notified area, a declaration should be submitted to the Forest Range Officer or the Assistant Wild Life Warden as the case may be, having jurisdiction over the territorial area and an acknowledgement must be obtained. However, as per the first proviso to Section 6(6) of the Act of 2005, if after the declaration is submitted for obtaining such a permit, an acknowledgement is not received within 20 days, the acknowledgement shall be presumed to have been received by the owner.
16. However, if a smallholder requires to cut a tree from a notified area, they need to obtain permission from the Authorized Officer, and if he wants to transport it, he must obtain a transportation permit as stipulated in the second proviso to Section 6(6) of the Act of 2005.
17. In the decision in Sukumaran and Others v. State of Kerala Crl. M.C No. 2478/2009, a learned Single Judge of this Court had held that (i) An owner of a non-forest land if it is not CRL.MC NO. 4323 OF 2013 12 within the notified area as provided under sub-section3 of section 6 of the Act is entitled to cut, uproot or transport all trees except sandalwood trees. (ii) If the non-forest land is within the notified area, specified trees can be cut, uprooted or transported only with permission as provided under sub- section3 of section 6. (iii) If any specified tree is cut from a non- forest land, within a notified are without permission and in violation of section 6(3) of the Act it is punishable under section 7 of the Act.
18. In the instant case, the petitioner has produced Ann. A-II, a report submitted by the Tahsildar to the Forest Range Officer stating that the tree stands on a property belonging absolutely to the petitioner. The said letter is dated 31.05.2013. Though the petitioner contended that the said report is based on a request by the Forest Range Officer, pursuant to an application submitted by the petitioner, I find that there is no such pleading to that effect and the same is only an afterthought.
19. Notwithstanding the above, in order to satisfy the court's conscience, the original file from the Forest Range Officer was called for. The file reveals that the letter dated 31.05.2013, issued by the Tahsildar to the Forest Range Officer CRL.MC NO. 4323 OF 2013 13 is in the files but produced apparently only on 15.07.2013, which is subsequent to the seizure of the timber and the date of occurrence of the crime in the present case.
20. However, Ann. A-IV occurrence report was not registered on the basis of a violation of the Act of 2005 but on the basis of the alleged violation of Rules 1995. After initiating a crime, for violation of the said rules, it is not open for the respondents to now contend at this distance of time that the said rules may not apply, but that the Act of 2005 is violated. Further, there is no contention even for the respondents that the land is in a notified area. Since the trees that were cut and removed were not situated either in forest land or in a notified area, no offence under the Act of 2005 is made out as held in the decision in Sukumaran's Case (supra). The only requirement was that petitioner ought to have submitted a declaration to the Authorized Officer and obtained an acknowledgement. Since the files reveal that the Tahsildar had written to the Forest Range Officer on 31.05.2013 itself, the contention that the said report was based on the declaration submitted by the petitioner cannot be brushed aside also. In such circumstances, permitting the continuance of such an investigation, that too at this distance of time, is an abuse of the process of the court. CRL.MC NO. 4323 OF 2013 14
21. Taking into reckoning the above, I am of the considered view that the proceedings initiated against the petitioner as OR No. 29/2013 is an abuse of the process of court and is liable to be quashed. Accordingly, I quash all further proceedings against the petitioner in OR No.29/2013 of the Forest Range Office, Kumily.
The Crl.MC is allowed.
BECHU KURIAN THOMAS JUDGE jm/ CRL.MC NO. 4323 OF 2013 15 APPENDIX OF CRL.MC 4323/2013 PETITIONER ANNEXURES Annexure V A TRUE COPY OF THE COMMUNICATION DATED 15.07.2013 SEND BY THE 2ND RESPONDENT ADDRESSED TO THE 3RD RESPONDENT Annexure VI A TRUE COPY OF THE COMMUNICATION DATED 20/7/2013 SENT BY THE 3RD RESPONDENT ADDRESSED TO THE 2ND RESPONDENT Annexure VII A TRUE COPY OF THE REPORT DATED 18.07.2013 SUBMITTED BY THE VILLAGE OFFICER KUMILY VILLAGE ADDRESSED TO THE 3RD RESPONDENT ANNEXURE II- TRUE COPY OF THE CERTIFICATE ISSUED BY THE TAHSILDAR, PEERMADE ON 21.05.2013.
ANNEXURE III- TRUE COPY OF THE TRANSIT PASS ISSUED ON 22.11.2003 ISSUED BY THE DIVISIONAL FOREST OFFICER, KOTTAYAM, PERMITTING TRANSPORTATION OF TEAKWOOK LOG CUT AND REMOVED FROM THE LAND COMPRISED IN SURVEY NO.222 OF KUMILY VILLAGE.
ANNEXURE IV- TRUE COPY OF THE COMPLAINT FILED AS O.R.NO.29/2013 BY THE IST RESPONDENT.
ANNEXURE I- TRUE COPY OF THE SETTLEMENT DEED NO.3700[1]/2011 OF SRO, PEERMADE.