Kerala High Court
The State Of Kerala vs Rahul.T on 2 March, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
MONDAY, THE 02ND DAY OF MARCH 2020 / 12TH PHALGUNA, 1941
WA.No.248 OF 2020
AGAINST THE JUDGMENT IN WP(C) 22680/2019(H) OF HIGH COURT OF
KERALA
APPELLANTS/RESPONDENTS IN WPC:
1 THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 THE RANGE OFFICER,
FOREST RANGE OFFICE,
KOTTIYOOR FOREST RANGE, KANNUR DISTRICT.
3 THE CHIEF CONSERVATOR OF FORESTS,
NORTHERN CIRCLE, KANNOTHUMCHAL, THANA,
P.O.KANNUR, KANNUR DISTRICT-670 012.
4 THE DEPUTY FOREST CONSERVATOR,
DIVISIONAL FOREST OFFICE,
KANNOTHUMCHAL, KANNUR-670 012.
BY ADV. SRI.SANDESH RAJA K., SPL. G.P. (FOREST)
RESPONDENTS/PETITIONERS IN WPC:
1 RAHUL.T
S/O. SREEDHARAN, KAARATT HOUSE, VELLARAVALLY,
P.O.VELLARAVALLY, KANNUR DISTRICT - 670 673.
2 SHIKHIL V.K.,
S/O. SHANMUGHAN, VELLUVAKANDI HOUSE,
VELLARAVALLY P.O., VELLARAVALLY,
KANNUR DISTRICT - 670 673.
W.A.No.248 of 2020
2
3 ROSHIN .N.,
S/O. PRADEEPAN, VADUVILEKANDI PARAMBIL,
VELLARAVALLY P.O., VELLARAVALLY,
KANNUR DISTRICT - 670 673.
R1-3 BY ADV. SRI.JACKSON JOHNY
R1-3 BY ADV. SRI.MUHAMMED YASIL
R1-3 BY ADV. SMT.ROSIN JOSEPH
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
02.03.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.No.248 of 2020
3
"C.R."
JUDGMENT
Dated this the 2nd day of March, 2020 S.Manikumar, C.J.
Challenging the judgment in W.P.(C)No.22680 of 2019 dated 18.12.2019, instant writ appeal is filed.
2. Short facts leading to the writ petition are that, writ petitioners (respondents herein) are accused in O.R.No.2 of 2017 filed under Sections 27(1)(e)(iii) and (iv) and 52 of the Kerala Forest Act, 1961. After investigation, a final report has been filed by the Range Officer, Kottiyoor Forest Range, Kannur (second respondent) and the case is now pending trial before the Judicial Magistrate of the First Class, Kuthuparamba. Ext.P3 is the final report in the case. The allegations against the petitioners are that they have trespassed into the forest and removed a fallen tree in the category of "Xylia Xylo Corpa", after cutting the same into pieces using a saw, and thereby caused loss to the Government to the tune of Rs.900/-. The offence alleged against the petitioners being an offence which could be compounded under Section 68 of the Kerala Forest Act, petitioners have preferred an application before the competent authority for compounding the offence alleged against them. The application was rejected on the ground that the same cannot be W.A.No.248 of 2020 4 considered when the case is pending trial before the competent court. Ext.P4 is the order issued by the competent authority. Ext.P4 has been challenged by the petitioners before this Court in Crl.M.C.No.2483 of 2019. In terms of Ext.P5 order, this Court set aside Ext.P4 order and directed the competent authority to consider the application afresh, holding that the pendency of the case before the criminal court is not a bar in the matter of considering the application for compounding. Thereupon, the competent authority has passed Ext.P7 order rejecting the request made by the petitioners again, holding that as the offences alleged against them are of serious nature, the request cannot be considered. Hence the writ petition.
3. Writ court, after considering the rival submissions and taking note of the decisions in Mathew v. State of Kerala reported in 2011 (3) KLT 1 and State of Jharkhand and Another v. Govind Singh reported in (2005) 10 SCC 437, allowed the writ petition as hereunder:
"6. Coming to the facts of the case, as pointed out by the learned counsel for the petitioners, though the offences alleged against the petitioners are punishable under Sections 27(1)(e)(iii) and (iv) and 52 of the Act, the allegation against the petitioners, in essence, is that they have cut and removed a fallen tree from the forest. Ext.P3 final report in the case instituted against the petitioners indicates that cost of the fallen tree which was allegedly removed by the petitioners was only Rs.2000/-. It is also seen from W.A.No.248 of 2020 5 Ext.P3 that the logs of the tree removed by the petitioners have been recovered from them and sold in auction and the loss caused to the Government on account of the offences allegedly committed by the petitioners has been mitigated to the extent of Rs.900/-. True, the offences alleged against the petitioners are punishable with imprisonment for a term which shall not be less than one year. The specific pleading in the writ petition is that the petitioners, who were students, were not aware of the fact that a fallen tree or its branches cannot be removed from the forest. An explanation of the said nature cannot be accepted. Nevertheless, having regard to the fact that the petitioners have only removed branches of a fallen tree and the fact that the same was worth only Rs.900/- and also the fact that the petitioners were persons aged 21 and 22 years, I am of the view that this is a case where the competent authority should have compounded the offences alleged against the petitioners by accepting the loss caused to the Government by way of compensation.
In the result, the writ petition is allowed, Ext.P7 order is set aside and the competent authority is directed to compound the offences alleged against the petitioners in the manner provided for under the Act after accepting Rs.900/- by way of compensation."
4. Being aggrieved, instant writ appeal is filed inter alia on the following grounds:
A) The judgment of the learned single Judge setting aside Ext.P7 order rejecting the application for compounding offence on the ground that the amount of loss caused to the Government is only Rs.900/- and that the appellants are only aged 21 and 22 years is per se illegal, perverse and against the documents on W.A.No.248 of 2020 6 record.
B) Ext.P7 order is passed by the authorised officer by virtue of the sovereign power delegated by the State under Section 68 of the Kerala Forest Act 1961 and the reason stated therein is not amenable to a challenge under article 226 of the Constitution of India.
C) The judgment of the learned single Judge directing the competent authority to compound the offences on the ground that the petitioners have only removed branches of a fallen tree which is worth only Rs.900/- and that they were aged only 21 and 22 years is illegal, perverse and in violation of Section 68 of the Kerala Forest Act.
D) Ext.P7 order passed by the Divisional Forest Officer rejecting the compounding application on the ground that they have tried to cut and remove two Irul trees after knowing that the same is an offence and considering the gravity of the offence, ought to have been upheld by the learned single Judge finding that the reasoning in Ext.P7 order is in accordance with Section 68 of the Kerala Forest Act, 1961.
E) The judgment of the learned single Judge directing the Divisional Forest Officer, Kannur to compound the offences by setting aside the reasons in Ext.P7 and by substituting another reason is as the court cannot substitute the reasons by judicial review in the matter of the discretion exercised by the authorised officer in passing orders under section 68 of the Kerala Forest Act, 1961.
5. Inviting the attention of this court to the reasons assigned by the authorised officer, for rejecting the request for compounding namely, W.A.No.248 of 2020 7
i) the accused had the knowledge to steal timber and ii) the offence, being serious in nature, carries a minimum punishment of one year extendable upto 5 years with fine or both, Mr.K.Sandesh Raja, learned Special Government Pleader (Forest) submitted that when discretion is conferred under Section 68 of the Kerala Forest Act, 1961, and when the same has been exercised without any malafide or arbitrariness, writ court ought to have sustained the order passed by the Divisional Forest Officer, Kannur, officer authorised under Section 68 of the Forest Act to compound. Referring to the dictionary meaning of the word 'compounding', Mr.K.Sandesh Raja, learned Special Government Pleader (Forest) submitted that the writ court ought to have remanded the matter to the Divisional Forest Officer to exercise his discretion and ought not to have directed compounding. Dictionary meaning referred to by the learned Special Government Pleader (Forest) is reproduced:
"compounding a crime. The offense of either agreeing not to prosecute a crime that one knows has been committed or agreeing to hamper the prosecution. - Also termed theft-bote.
"If a prosecuting attorney should accept money from another to induce the officer to prevent the finding of an indictment against that person this would be compounding a crime if the officer knew the other was guilty of an offense, but would be bribery whether he had such knowledge or not." Rollin M. Perkins & Ronald W.A.No.248 of 2020 8 N. Boyce, Criminal Law 539 (3d ed. 1982)."
6. Section 68 of the Kerala Forest Act, 1961 reads thus:
"68. Power to compound offences.- (1) Any forest Officer not below the rank of an Assistant Conservator of Forests may accept from any person, reasonably suspected of having committed any forest offence other than an offence under section 62 or section 65, a sum of money by way of compensation for the offence which may have been committed and where any property has been seized as liable to confiscation, may release the same on payment of the value thereof as estimated by such officer or confiscate such property to the Government.
(2) On the payment of such sum of money or such value or both, as the case may be, to such officer, the accused person, if in custody, shall be discharged, the property seized shall be released and no further proceedings shall be taken against such person or property "
7. Material on record discloses that earlier, when the Divisional Forest Officer, Kannur rejected the request of the respondents for compounding, the reason assigned was that a criminal case was pending in the court, and hence compounding is not permissible. When the said rejection order was struck down in Crl.M.C.No.2483 of 2019, to reconsider afresh, the Divisional Forest Officer has cited two reasons
(i) gravity and (ii) knowledge. Even going by the definition relied on by W.A.No.248 of 2020 9 the learned Special Government Pleader (Forest), compounding a crime means, "the offence of either agreeing not to prosecute a crime that one knows has been committed or agreeing to hamper the prosecution". Therefore, when the accused offers to compound, he knows that he has committed the offence. Therefore, the reason assigned by the competent authority that the respondent had the knowledge to commit the offence, and therefore, compounding is not permissible, cannot be countenanced.
8. Referring to Section 321 of the Code of Criminal Procedure, learned Special Government Pleader submitted that after considering the facts and circumstances of the case, either the Public Prosecutor or the Assistant Public Prosecutor in charge of a case may, with the consent of the court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried. According to him, in the case on hand, prosecution can still withdraw the accused from the case at any time before judgment. As regards the punishment for the various offences under the Kerala Forest Act, 1961, it is the admission of the learned Special Government Pleader that for all the offences under the Act, the minimum imprisonment is one year and the maximum differs, depending upon the gravity of the offences, under the Act. Offence alleged to have been committed by the respondents is under Section W.A.No.248 of 2020 10 27(1)(e)(iii) of the Kerala Forest Act. The offences under Sections 27(i)
(e)(iii) and (iv) and 52 of the Kerala Forest Act ie., illegally entered into Reserve Forest and trying to cut down two dried Irul trees, are punishable with imprisonment for a term which shall not be less than one year but may extend to five years and with fine which shall not be less than one thousand rupees, but may extend to five thousand rupees in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid.
9. Considering the submission of the learned Special Government Pleader that the offence is serious in nature and therefore, not compoundable, we would like to address as to what compounding means:
The word "compound" means "settle by mutual concession". To 'compound' a debt, is to abate a part on receiving the residue (see Haskins Vs. New Comb, 2 Johns 408; Pennell Vs. Rhodes, 9 Q.B.
129). The word 'compound' as used in Section 320 of the Code means "to forbear from prosecution for consideration of any private motive".
10. It would not be appropriate to contend that for the purpose of compounding under Section 68 of the Kerala Forest Act, 1961 there should not be an offence, punishable less than the minimum sentence, of one year, for the reason that all the offences under the Forest Act are W.A.No.248 of 2020 11 punishable with a minimum period of one year. If the contention of the learned Special Government Pleader (Forest) is accepted, then no offence under the Kerala Forest Act, 1961 can be compounded and thus section 68 of the Act would be rendered otiose.
11. As per sub-section (2) of Section 68 of the Kerala Forest Act, "on the payment of such sum of money or such value or both, as the case may be, to such officer, the accused person, if in custody, shall be discharged" specifically indicates pendency of the case in court, when such composition is made. The further provision in sub-section (2) of Section 68 that "and no further proceedings shall be taken against such person or property" means that proceeding if any pending shall be closed or dropped and if not pending, shall not be initiated.
12. It is profitable to consider the decision in Sivapalan Vs. R.T.O., Kollam (1996 (2) KLT 632). There Section 86(5) of the Motor Vehicles Act, 1988 was considered. It was held that once the offence is compounded, such compounding operates as a complete bar, to any further proceeding. The effect of composition is that, it precludes the authority who initiated proceeding against the offender from proceeding further.
13. We are of the view that the Divisional Forest Officer was not correct in holding that there could be no compounding of the offences W.A.No.248 of 2020 12 registered under Section 27(i)(e)(iii) and (iv) and Section 52 of the Kerala Forest Act, 1961 when the offence is grave in nature. There is nothing in Section 68 of the Kerala Forest Act, which takes away the power of the competent authority to compound the offence even when the offence is grave in nature. In case the offence is compounded, the Officer compounding the offence has to give a report to the court where the case is pending and on such report being received the case is to be closed and the accused if he is in custody is to be discharged.
14. Section 320 of the Criminal Procedure Code, 1973, provides for compounding of certain offences punishable under certain Sections of the Indian Penal Code. Offence under Section 497-Adultery is one of the offences included in Section 320 of the Criminal Procedure Code for compounding. For the offence of adultery, the punishment prescribed under the Indian Penal Code is imprisonment of either description for a term which may extend to 5 years, or with fine, or with both.
15. Indian Penal Code, 1860 is a general law, whereas, Kerala Forest Act, 1961 is a special enactment. The distinction between both the enactments is that in respect of certain grievous offences, Indian Penal Code provides for a minimum sentence and the maximum sentence is death. Whereas under the Forest Act, the admitted position is that all the offences are punishable with a minimum sentence of one year W.A.No.248 of 2020 13 imprisonment and more. Adultery is a serious offence and that is why the punishment is extendable upto 5 years. Merely because there is a prescription of minimum sentence and that every offence under the Kerala Forest Act, 1961, is serious in nature and in such circumstances, compounding cannot be done under Section 68 of the Forest Act cannot be accepted.
16. The second reason assigned by the Divisional Forest Officer, Kannur, Authorised Officer, is that knowing well that it was a forest land, theft has been committed. Writ court has not accepted the contention of the respondents that they were not aware of the fact that removing a forest tree from the forest is an offence. However, writ court has considered the fact that the respondents were college students and aged about 21 and 22 years respectively and that they have removed only the branches of a fallen tree worth Rs.900/- and in the said circumstances, directed the authority to compound the offence.
17. Section 68 of the Kerala Forest Act confers discretion on the authority to consider the request for compounding. Let us consider few cases which defines what discretion is and how discretion should be exercised on the administrative side.
(i) In Suman Gupta and Others v. State of Jammu and Kashmir and Others [AIR 1983 SC 1235:(1983) 4 SCC 339], the W.A.No.248 of 2020 14 Hon'ble Supreme Court while explaining as to how administrative discretion should be exercised, at paragraph No. 6, held as follows:
"The exercise of all administrative power vested in public authority must be structured within a system of controls informed by both relevance and reason -relevance in relation to the object which it seeks to serve, and reason in regard to the manner in which it attempts to do so. Wherever the exercise of such power affects individual rights, there can be no greater assurance protecting is valid exercise than its governance by these twin tests. A stream of case law radiating from the now well known decision in this Court in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] has laid down in clear terms that Article 14 of the Constitution is violated by powers and procedures which in themselves result in unfairness and arbitrariness. It must be remembered that our entire constitutional system is founded in the rule of law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.
In the above reported judgment, the Hon'ble Apex Court further held that, "We do not doubt that in the realm of administrative power the element of discretion may properly find place, where the statute or the nature of the power intends so. But there is a well recognised distinction between an administrative power to be exercised within defined limits in the reasonable discretion of designated authority and the vesting of an absolute and uncontrolled power in such authority. One is power controlled by law countenanced W.A.No.248 of 2020 15 by the Constitution, the other falls outside the Constitution altogether."
(ii) Reiterating as to how the discretionary power has to be exercised, the Hon'ble Supreme Court in Sant Raj and Another v. O.P. Singla and Others [AIR 1984 SC 1595 : (1985) 2 SCC 349], held that,-
"Whenever, it is said that something has to be done, within the discretion of the authority, then that something has to be done, according to the rules of reason and justice and not according to private opinion, according to law and not humour. It is to be not arbitrary, vague and fanciful but legal and regular and it must be exercised within the limit to which an honest man to the discharge of his office ought to find himself. Discretion means sound discretion guided by law. It must be governed by rule, not by humour, it must not be arbitrary, vague and fanciful.
(iii) In Fasih Chaudhary v. Director General, Doordarshan and Others [AIR 1989 SC 157 and (1989) 1 SCC 89], the Hon'ble Supreme Court held that exercise of discretion should be legitimate, fair and without any aversion, malice or affection.
Nothing should be done which may give the impression of favouritism or nepotism. While fair play in action in such matters is an essential requirement, "free play in the joints" is also a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere as the present one.
(iv) While considering, a litigation arising out of Bangalore W.A.No.248 of 2020 16 Development Authority Act, 1976, the Hon'ble Supreme Court in Bangalore Medical Trust v. B.S. Muddappa and Others [AIR 1991 SCC 1902 : (1991) 4 SCC 54], held that,-
"Discretion is an effective tool in administration. It provides an option to the authority concerned to adopt one or the other alternative. But a better, proper and legal exercise of discretion is one where the authority examines the fact, is aware of law and then decides objectively and rationally what serves the interest better. When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authority to abuse the law or use it unfairly. Where the law requires an authority to act or decide, 'if it appears to it necessary' or if he is 'of opinion that a particular act should be done' then it is implicit that it should be done objectively, fairly and reasonably. In a democratic set up the people or community being sovereign the exercise of discretion must be guided by the inherent philosophy that the exerciser of discretion is accountable for his action. It is to be tested on anvil of rule of law and fairness or justice particularly if competing interests of members of society is involved. Decisions affecting public interest or the necessity of doing it in the light of guidance provided by the Act and rules may not require intimation to person affected yet the exercise of discretion is vitiated if the action is bereft of rationality, lacks objective and W.A.No.248 of 2020 17 purposive approach. Public interest or general good or social betterment have no doubt priority over private or individual interest but it must not be a pretext to justify the arbitrary or illegal exercise of power. It must withstand scrutiny of the legislative standard provided by the statute itself. The authority exercising discretion must not appear to be impervious to legislative directions. The action or decision must not only be reached reasonably and intelligibly but it must be related to the purpose for which power is exercised. No one howsoever high can arrogate to himself or assume without any authorisation express or implied in law a discretion to ignore the rules and deviate from rationality by adopting a strained or distorted interpretation as it renders the action ultra virus and bad in law.
(v) In Shiv Sagar Tiwari v. Union of India and Others [AIR 1997 SC 1483 : (1997) 1 SCC 444], the Hon'ble Supreme Court held that the discretionary power has to be exercised to advance the performance, to sub-serve for which the power exists.
(vi) In Rakesh Kumar v. Sunil Kumar [AIR 1999 SC 935 :
(1999) 2 SCC 489], the Hon'ble Supreme Court has held that administrative action/quasi-judicial function is the duty of the authority to give reasons/record reasons/and it should be a speaking order.
(vii) In A.P. Aggarwal v. Govt. of NCT of Delhi [AIR 2000 SC 205: (2000) 1 SCC 600], the Hon'ble Supreme Court held as under:
"The conferment of power together with a discretion which goes with it to enable proper exercise of the power and W.A.No.248 of 2020 18 therefore it is coupled with a duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual."
(viii) In Indian Railway Construction Co. Ltd. v. Ajay Kumar [AIR 2003 SC 1843 : (2003) 4 SCC 579], at paragraphs No. 13 to 15, the Hon'ble Supreme Court explained the manner in which discretionary power has to be exercised, while discharging an administrative function. In the above judgment, the Supreme Court held that in matters relating to administrative functions, if a decision is tainted by any vulnerability as such illegality, irrationality and procedural impropriety, Courts should not hesitate to interfere, if the action falls within any of the categories stated supra.
"14. The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troops, entering into international treaties etc. The distinctive features of some of these recent cases signify the willingness of the courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review.
The first ground is "illegality", the second "irrationality", and the third "procedural impropriety". These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (commonly known as CCSU case). If the power has been exercised on a non-W.A.No.248 of 2020 19
consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See CIT v. Mahindra and Mahindra Ltd.) The effect of several decisions on the question of jurisdiction has been summed up by Grahame Aldous and John Alder in their book Applications for Judicial Review, Law and Practice thus:
"There is a general presumption against ousting the jurisdiction of the courts so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of governmental activity, national security being the paradigm, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the Government's claim is bona fide. In this kind of non- justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service this is doubtful. LORDS Diplock, Scarman and ROSKILL appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject-matter of a particular power, in that case national security. Many prerogative powers are in fact concerned with sensitive, non-justiciable areas, for example, foreign affairs, but some W.A.No.248 of 2020 20 are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non-justiciable power is the Attorney- General's prerogative to decide whether to institute legal proceedings on behalf of the public interest."
(Also see Padfield v. Minister of Agriculture, Fisheries and Food)
15. The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above: like illegality, irrationality and procedural impropriety. Whether the action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient.
17. Before summarizing the substance of the principles laid down therein we shall refer to the passage from the judgment of LORD GREENE in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn. (KB at p. 229 : All ER pp. 682 H-683 A). It reads as follows:
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration W.A.No.248 of 2020 21 matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority.... In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another."
Lord Greene also observed: (KB p. 230 : All ER p. 683 F-G) "... it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable.... The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another."
(Emphasis supplied)
18. Therefore, to arrive at a decision on "reasonableness" the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the court to substitute its view."
(ix) In Union of India v. Kuldeep Singh [AIR 2004 SC 827: W.A.No.248 of 2020 22
(2004) 2 SCC 590], the Hon'ble Supreme Court while testing the correctness of the judgment rendered under the Narcotic Drugs and Psychotropic Substances Act, 1985, and the discretion to be exercised by the High Court, explained the principles governing the mode of exercise of the discretionary power for public functionaries as follows:
"20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law.
21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and W.A.No.248 of 2020 23 substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons.
22. The word "discretion" standing single and unsupported by circumstances signifies exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility. "The discretion of a judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper and passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable," said Lord Camden, L.C.J., in Hindson and Kersey (1680) 8 HOW St Tr. 57.
23. If a certain latitude or liberty is accorded by a statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of discretion, and prevents it from being wholly absolute, capricious, or exempt from review."
(x) In State of NCT of Delhi v. Sanjeev, [AIR 2005 SC 2080 :
(2005) 5 SCC 181], the Hon'ble Supreme Court explaining the scope of judicial review of executive action has held as follows:
"15. One of the points that falls for determination is the scope for judicial interference in matters of administrative W.A.No.248 of 2020 24 decisions. Administrative action is stated to be referable to broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside, if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (see State of U.P. v. Renusagar Power Co.). At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor de Smith in his classical work Judicial Review of Administrative Action, 4th Edn. at pp. 285-87 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarised as follows:
The authority in which discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit W.A.No.248 of 2020 25 of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.
(xi) While testing the validity of Central Electricity Regulatory Commission (Procedure, terms and conditions for grant of trading licence and other related matters) (Amendment) Regulations, 2006, the Hon'ble Supreme Court in Global Energy Limited and Another v. Central Electricity Regulatory Commission, [AIR 2009 SC 3194 : (2009) 15 SCC 570], started the judgment with an epilogue and it reads as follows:
"Epilogue
71. The law sometimes can be written in such subjective manner that it affects efficiency and transparent function of the Government. If the statute provides for pointless discretion to agency, it is in essence demolishing the accountability strand within the administrative process as the agency is not under obligation from an objective norm, which can enforce accountability in decision-making process. All law-making, be it in the context of delegated legislation or primary legislation, have to conform to the fundamental tenets of transparency and openness on one hand and responsiveness and accountability on the other. These are fundamental tenets flowing from due process W.A.No.248 of 2020 26 requirement under Article 21, equal protection clause embodied in Article 14 and fundamental freedoms clause ingrained under Article 19. A modern deliberative democracy cannot function without these attributes.
40. The power conferred on the authority without any guidelines may likely to be abused or arbitrarily exercised and in such circumstances, the guidance and control of exercise of such power has to be gathered from the object of conferment of power. Non-consideration or non-application of mind to relevant factors renders the exercise of discretion manifestly erroneous, and it is cause for judicial interference."
18. Though Mr.K.Sandesh Raja, learned Special Government Pleader (Forest) referred to Sections 72 and 73 of the Kerala Forest Act, 1961 and Article 162 of the Constitution of India and made a feeble attempt to compare as to how exercise of discretion has to be done, we are not impressed on the said submission for the reason that Article 162 of the Constitution of India deals with the executive power of the State to issue executive instructions in the absence of any rules or even in the case of existing rules to supplement to the same with executive instructions, not in contravention of any statutory provision of the Act or the Constitution of India. Said submission is in opposite to the case.
19. Age, ailment, gravity, first or repeat offender, punishments imposed earlier, may be some of the factors which can be considered W.A.No.248 of 2020 27 while compounding an offence. Though no specific guidelines have been framed by the Government as to how discretion under Section 68 of the Kerala Forest Act has to be exercised, reasoning of the Divisional Forest Officer in rejecting the request for compounding, in our opinion, amounts to circumscribing the powers of discretion conferred on the authority to a very limited extent by stating that the offence is serious and done with knowledge. Such a narrow construction would affect the rights of the parties to seek for compounding. In the case on hand, respondents are college students and their age is approximately 21 and 22 years. By admitting their guilt, respondents, who are reasonably suspected or committed the offence under the Kerala Forest Act, 1961 have come forward to compound, on payment of the value of the property, Rs.900/-, as estimated by the officer empowered to confiscate the property to the Government.
20. As per sub-section (2) of Section 68 of the Kerala Forest Act, 1961 on the payment of such sum of money or such value or both as the case may be, to such officer, the accused person, if in custody, shall be discharged, the property seized shall be released and no further proceedings shall be taken against such person or property. The value of the property is stated to be Rs.900/-. One of the contentions raised by the learned Special Government Pleader for Forest is that the decision of W.A.No.248 of 2020 28 the writ court is perverse. Let us consider a few decisions with respect to what perversity means:
(i) In State of NCT of Delhi v. Sanjeev reported in (2005) 5 SCC 181 = AIR 2005 SC 2080, the Hon'ble Supreme Court observed thus, ".......to characterize a decision of the administrator as "irrational'' the Court has to hold, on material, that it is a decision "so outrageous'' as to be in total defiance of logic or moral standards."
(ii) In State of A.P. v. Abdul Khuddus reported in 2007 (15) SCC 261, the Hon'ble Supreme Court, at Paragraph 12, held that, "The High Court, while reversing the findings of the Special Court could also not come to a conclusion of fact that the respondents had perfected their title in respect of the schedule land by adverse possession or that the schedule land belonged to Gandhi Hill Society. Such being the position, we are unable to sustain the order of the High Court, which had set aside the findings of fact arrived at by the Special Court, which, in our view, were arrived at on consideration of the materials on record and which, by any stretch of imagination, cannot be said to be based on no evidence or surmises or conjectures and therefore, it was not open to the High Court, in the exercise of its writ jurisdiction, to set aside the findings of fact arrived at by the Special Court which were based on sound consideration of the materials on record."
(iii) In Arulvelu v. State reported in (2009) 10 SCC 206, W.A.No.248 of 2020 29 the Hon'ble Supreme Court, in Paragraphs 27, 29 and 30, explained what "perverse" means. Said paragraphs are extracted hereunder:
"27. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE: Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
......
29. In Kuldeep Singh v. The Commissioner of Police, (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under:
"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a W.A.No.248 of 2020 30 perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under:
"7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration W.A.No.248 of 2020 31 irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
(iv) In The General Manager (P) Punjab & Sind Bank v. Daya Singh reported in (2010) 11 SCC 233, at Paragraph 24, the Hon'ble Supreme Court, held as follows:
"24. Absence of reasons in a disciplinary order would amount to denial of natural justice to the charge-sheeted employee. But the present case was certainly not one of that category. Once the charges were found to have been established, the High Court had no reason to interfere in the decision. Even though there was sufficient documentary evidence on record, the High Court has chosen to hold that the findings of the enquiry officer were perverse. A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at. This has been held by this Court long back in Triveni Rubber & Plastics v. CCE, AIR 1994 SC 1341. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arilvelu v. State, (2009) 10 SCC 206. The decision of the High Court cannot therefore be sustained.
(v) In S.R.Tiwari v. Union of India reported in (2013) 6 SCC 602, at Paragraph 30, the Hon'ble Supreme Court, held as follows:
"30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration W.A.No.248 of 2020 32 irrelevant/inadmissible material. The finding may also be said to be perverse if it is against the weight of evidence, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with."
21. Considering the age and future of the respondents, students, their right to seek for compounding under Section 68 of the Kerala Forest Act, 1961, conferring discretion on the Divisional Forest Officer, Kannur, we are not inclined to declare the decision of the writ court as perverse, warranting interference.
Writ appeal is accordingly dismissed.
Sd/-
S.Manikumar, Chief Justice Sd/-
Shaji P.Chaly, Judge vpv /TRUE COPY/ P.A. TO JUDGE