Kerala High Court
Sosamma vs State Of Kerala on 4 June, 2008
Author: A.K.Basheer
Bench: A.K.Basheer
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 1151 of 2008()
1. SOSAMMA, W/O.MARCOSE,
... Petitioner
2. MARCOSE @ BABY, S/O.GEORGE,
3. SUNNY, S/O.VARGHESE,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
Dated :04/06/2008
O R D E R
A.K.BASHEER, J.
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Crl. M.C.No.1151 OF 2008
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Dated this the 4th day of June, 2008
J U D G M E N T
~~~~~~~~~~~~ Petitioners who have been arraigned as accused in Annexure E, Occurrence report filed by the Assistant Wild Life Warden of Peechi Forest Range, alleging commission of offence punishable under Section 6(3) of the Kerala Promotion of Tree Growth in Non-forest Areas Act, 2005 (for short 'the Act') have preferred this petition under Section 482 of the Code of Criminal Procedure seeking to quash the above proceedings pending against them on the file of the Judicial Magistrate of First Class - III, Thrissur.
2. The gist of the allegations in Annexure E is that petitioners/accused had attempted to cut and remove two teak trees from the patta land belonging to accused No.1 without obtaining prior permission from the authority concerned. I shall revert back to the other details furnished in Annexure E report a little later.
Crl.M.C.No.1151/2008 2
3. It is not in dispute that the Government had assigned 1.01 acres (40.87) of land in Survey No.3234/2 situated in Pananchery village of Thrissur taluk in favour of Sri.Varghese, father of petitioner No.1. A form of patta as provided under Rule 9(2) of the Kerala Land Assignment Rules was issued in February, 1983. It is also beyond controversy that Sri.Varghese had executed a settlement deed in favour of his daughter Smt.Sosamma (petitioner No.1). Thus, Smt.Sosamma had been in absolute possession and enjoyment of the above extent of land ever since 1983. A perusal of the Schedule in the form of Patta, a photocopy of which has been made available for perusal, indicates that there were no "reserved trees" in the property assigned to Sri.Varghese. It may be noticed that a patta holder could not have cut and removed any tree from the land assigned to him/her without obtaining permission from the competent authority as provided under the Act, 2005.
4. Section 6 of the Act postulates that notwithstanding anything contained in any other law for the time being in force, every owner of non-forest land shall have the right to cut and Crl.M.C.No.1151/2008 3 transport any tree, other than sandalwood tree, standing on his land. Sub-section (5) stipulates that the owner shall a declaration before the Forest Range Officer having jurisdiction over the area containing details such as the survey number of the land from which the tree is cut, number of trees, species of trees, quantity of timber and the place to which such timber is being transported etc.
5. Sub-section 3 of Section 6 which is referred to in Annexure E report is extracted here under:
"(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 sub-section are free to cut and remove any tree except the specified trees:
Provided further that the smallholders 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 tress except specified tress:
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 Crl.M.C.No.1151/2008 4 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 Authorsied Officer if the tree constitutes a danger to life or property or is wind-fallen".
6. The 3rd proviso extracted above obligates the owner other than a small holder in an area notified under the sub- section, may cut and remove any tree other than sandalwood tree only with the prior permission in writing of the Authorised Officer. It is further provided that such permission shall not be required for the cutting and removal of the trees mentioned in the schedule. The case of the reporting officer in Annexure E was that the accused had not obtained prior permission before cutting the two trees.
7. But it is seen from Annexure-1 that Smt.Sosamma (petitioner No.1) had infact made a request before the Assistant Wild Life Warden, Peechi, to allow her to cut and remove five teak trees standing in the patta land, in her possession. According to the petitioners, the competent authority had not Crl.M.C.No.1151/2008 5 passed any orders on the said request as contemplated under the Act and therefore, two teak trees were cut. The specific case of Smt. Sosamma is that her daughter had been constructing a residential building at Mala. The timber from the two teak trees were proposed to be utilised for the purpose of the said construction.
8. The Assistant Wild Life Warden had visited the site and seized 22 pieces of teak which were admittedly cut by the petitioners apart from two head loads of firewood. Annexure E was prepared on 5.2.2008 and submitted before the Judicial First Class Magistrate III, Thrissur. It is at that stage that the petitioners had preferred this petition seeking to quash the above proceedings pending against them in the report.
9. It is contended by Sri.Vijayabhanu, learned counsel for the petitioners that Annexure E, Occurrence Report is ex facie, illegal, vitiated and without jurisdiction. He contends that the two teak trees in question were cut from the patta land. Admittedly, no reserved trees were available in the patta land as Crl.M.C.No.1151/2008 6 could be seen from the schedule in the form of patta. Therefore, Clause(1) of the patta which reserves full right over all the trees specified in the schedule in the Government, has no application at all. Proviso to sub-section I of Section 6 also therefore, does not come into play, it is contended. It is further contended by the learned counsel that petitioners had not committed any offence under the Act as alleged and therefore all proceedings pursuant to and arising from Annexure E report are liable to be quashed.
10. Per contra, it is contended by the learned Special Government Pleader, Forest, that petitioners were not entitled to cut any tree from the patta land without obtaining prior permission. He further contends that the petition under Section 482 of the Code seeking to quash Annexure E report is by itself misconceived and unsustainable. According to the learned Special Government Pleader, Annexure E report cannot be treated as a complaint as contemplated under the Code of Criminal Procedure and therefore, petitioners are not entitled to invoke the inherent power of this Court under Section 482. The Crl.M.C.No.1151/2008 7 argument of the learned Special Government Pleader appears to be that the interim order passed by this Court directing release of the timber logs to the petitioners is totally illegal and without jurisdiction.
11. When this case had come up for consideration on 9.4.2008, it was observed by this Court that "The question which will have to be decided in this case is as to whether the two teak trees which were cut and removed could be treated as the property of the Government as contended by the respondent or the property of the petitioners as contended by them. The fact remains that the trees have been cut and removed from the patta land of the petitioners after duly informing the Forest Department and were intended to be transported to Mala where the 1st petitioner's daughter is constructing a new house. The valuation given in Annexure E Occurrence Report is Rs.20,000/- although the stand taken by the Forest Department was that the Government had sustained no loss. The O.R. gives the complete description of the 22 pieces of timber the total value of which has been assessed at Rs.20,000/-. I do not think that for deciding the question of law the petitioner should be denied the teak trees reduced to 22 pieces for the purpose of construction of the house referred to above. In the event of this Court finally deciding against the petitioners the petitioners shall be liable to compensate the Government at such rate as may be assessed by this Court. Petitioners are, therefore, permitted to utilise the 22 pieces covered by Annexure E Occurrence Report for the purpose for which permission was sought from the Forest Department for their transit".
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12. It is contended by the learned Special Government Pleader that this Court was not justified in ordering release of the timber logs to the petitioners, especially, since the Assistant Wild Life Warden had filed Annexure R1 report before the court below informing that the Forest department proposes to proceed against the petitioners under the Forest Act, 1961.
13. It is true that in the said report the Assistant Warden has made a prayer before the court below to incorporate the provisions relating to offences under Section 2 (e)(k), 27 (1) (e)
(iii)(iv), 52 and 61(A) of the Forest Act, since according to the officer, in the course of the investigation in connection with Annexure E report, it had been revealed that the two teak trees had been cut from an area falling within the reserved forest. It is submitted by the learned Government Pleader that the department proposes to file a complaint before the competent court and proceed against the petitioners. It is also proposed to initiate confiscation proceedings under Section 61 (A) of the Act. It is thus contended that this Court will not be justified in Crl.M.C.No.1151/2008 9 releasing the timber logs to the petitioners as an interim measure.
14. In this context, it may be pertinent to note that the specific case of the complainant in Annexure E report was that the petitioners had committed offences punishable under Section 6(3) of Act, 2005. But curiously, the said report was filed as though it was one under Section 52 of the Forest Act. It is also relevant to note that Section 9 of Act 2 of 2005 empowers any officer of the department to seize timber and other articles involved in the commission of offences under the said Act. But for some strange reasons the officer who prepared Annexure E complaint had chosen to file the said report under Section 52 of the Forest Act. When this anomaly was pointed out to the learned Special Government Pleader, he tried to explain it away by saying that the mistake might have occurred because it was prepared in the printed format available with the department.
15. But there is yet another aspect of the matter. The case of the department at this juncture is that the petitioners had Crl.M.C.No.1151/2008 10 not committed any offence under Act 2 of 2005, but they are liable to be prosecuted for the offences under the Forest Act. It is also pointed out by the learned Government Pleader that Smt.Sosamma had been keeping illegal possession of some excess land over and above the extent assigned to her father under the patta.
16. It appears that the land covered under the patta bearing survey No.3234/2 had been resurveyed later. The land assigned to the petitioner now bears the survey number 17/4. According to the department, Smt. Sosamma had been keeping possession of a small extent in R.S.No.17/3 also, over and above the land in her possession under R.S.No.17/4. The two teak trees in question were standing in R.S.No.17/3 and petitioners had cut and removed those two teak trees, according to the department.
17. But it is pointed out by the learned counsel for the petitioners that the above contention raised by the department is wholly untenable and baseless, since the certificate issued by the Crl.M.C.No.1151/2008 11 Tahsildar, Thrissur, clearly revealed that the two teak trees were standing in R.S.No.17/4. A copy of the said communication dated 29.3.2008 is made available for perusal at the time of hearing. It is taken on record as Annexure X1.
18. In the above communication the Tahsildar has further noted that Smt. Sosamma had been paying revenue for some extent of land situated in R.S.No.17/3 by mistake. But the land in the said survey number is vested with the revenue department. The Tahsildar has further informed Smt. Sosamma in the said communication, that the possession certificate issued by the Village Officer in her favour in respect of land in R.S.No.17/3 would be revoked and cancelled.
19. It has also been brought to my notice that the Village Officer, Pananchery by his communication dated 28.3.2008 had infact cancelled the possession certification issued to Smt. Sosamma on 9.1.2008 in respect of the land in R.S.No.17/3. The said communication issued by the Village Officer is also taken on record as Annexure X2.
Crl.M.C.No.1151/2008 12
20. A perusal of the documents referred to above and also the other materials available on record, will undoubtedly show that the patta land infavour of the predecessor of Smt. Sosamma is situated in R.S.No.17/4, whereas Smt.Sosamma had been keeping possession of some extent of land in R.S.No.17/3 also. Though there is nothing on record to indicate that R.S.No.17/3 is a reserved forest, the learned Special Government Pleader has invited my attention to a notification bearing No.G.O.(MS) No.871 dated 6.8.1958 under which the above land had been notified as Wild Life Sanctuary.
21. Significantly, the northern boundary of the property assigned infavour of Smt.Sosamma is shown as forest land. Therefore, there is definitely some force in the contention raised by the learned Special Government Pleader that R.S.No.17/3 is infact a reserved forest. Any how, at this juncture, I do not propose to make any further comment or observation on that aspect. It is made clear that it will be open to the forest department to establish its case that R.S.No.17/3, is infact a Crl.M.C.No.1151/2008 13 forest land in appropriate proceedings if any, that may be initiated against the petitioners.
22. But going by the records available before this Court in this proceeding, it is prima facie seen that petitioners had cut the two teak trees from R.S.No.17/4 as stated by the Tahsildar in Annexure X1. Of course, the department has got a case that the trees were infact standing in R.S.No.17/3. The dispute is yet to be resolved. More importantly, the department has not so far filed a complaint against the petitioner alleging commission of any forest offences under the Forest Act, though, it is stated by the learned Special Government Pleader at the bar that a complaint will be filed very soon and proceedings under Section 61(A) of the Forest Act will be initiated without any delay after completing further investigation.
23. The short question that arises for consideration at this juncture is whether there is any relevance or significance for Annexure E report in view of the stand now taken by the department. As mentioned earlier, the department now insists Crl.M.C.No.1151/2008 14 that petitioners are guilty of the offences punishable under the Forest Act and that they have not committed any offence under Act 2 of 2005. Therefore, the prayers for quashing Annxure E report is liable to be allowed. I do so.
24. What remains is whether any modification is warranted as regards the interim order issued by this court on 9.4.2008. A perusal of the operative portion of the interim order extracted in the earlier part of this order will undoubtedly show that enough safeguards have been given to the department with regard to the apprehended loss that the Government might have incurred. In this context, it may also be pertinent to note that initially the Assistant Wild Life Warden had reckoned the value of the two teak trees as Rs. 20,000/-. The specific case of the Warden was that the Government had not sustained any loss. But later, the department has assessed the market value of the teak tress at Rs.1,60,909/- as could be seen from Annexure R2. In my view, no modification is warranted, as regards, the interim direction issued by this Court at this stage, especially, since the department has not, admittedly, initiated any proceedings Crl.M.C.No.1151/2008 15 against the petitioners under the Forest Act. Further, there appears to be some doubt or ambiguity with regard to the exact area from where the trees had been cut.
25. However, it is made clear that the department will be at liberty to take appropriate further action in the matter, in accordance with law. The interim order issued by this court on 9.4.2008 is made absolute. However, it is clarified that the said order shall be with out prejudice to the right of the department to initiate any further proceedings under the Forest Act, and also subject to the condition that petitioners shall be liable to compensate the Government/ Forest Department f ultimately it is found that the trees in question were cut from the reserved forest.
Criminal Miscellaneous Case is closed as above.
(A.K.BASHEER, JUDGE) ps Crl.M.C.No.1151/2008 16 A.K.BASHEER, J.
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