Kerala High Court
Divisional Forest Officer vs P.M.Jalal on 3 April, 2012
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY, THE 16TH DAY OF OCTOBER 2015/24TH ASWINA, 1937
CRP.No. 122 of 2013 ()
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AGAINST THE JUDGMENT IN CMA 97/2010 of II ADDL.DISTRICT
COURT,ERNAKULAM DATED 03-04-2012
PETITIONERS/RESPONDENTS:
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1. DIVISIONAL FOREST OFFICER
MALAYATTOOR, ERNAKULAM DISTRICT
2. THE FOREST RANGE OFFICER
KUTTAMPUZHA FOREST RANGE OFFICE
KUTTAMPUZHA, ERNAKULAM DISTRICT
3. THE DEPUTY RANGER
POOYAMKUTTY FOREST STATION, POOYAMKUTTY
KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT
BY ADV. GOVERNMENT PLEADER (SPL.): SRI. MADHAVANKUTTY
RESPONDENTS/APPELLANTS:
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1. P.M.JALAL
S/O.MUHAMMED, VARIKKATTU HOUSE NELLIKKUZHA P.O
ERAMALLOOR VILLAGE, KOTHAMANGALAM TALUK
ERNAKULAM DISTRICT 686 691
2. BIJU
S/O.KRISHNANKUTTY, PULLIPPARAMBIL
KOOVAPPARA P.O KUTTAMPUZHA VILLAGE
KOTHAMANGALAM TALUK ERNAKULAM DISTRICT 686 669
R1,R2 BY ADV. SRI.MATHEW KURIAKOSE
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
01.09.2015, THE COURT ON 16.10.2015 PASSED THE FOLLOWING:
"CR"
SUNIL THOMAS, J.
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C.R.P.No.122 of 2013
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Dated this the 16th day of October, 2015
ORDER
This revision at the instance of the Divisional Forest Officer and the forest officials of the Kerala Government, filed under Section 61D of the Kerala Forest Act, 1961 (for short, "the Act") is directed against the judgment of the District Court, Ernakulam in C.M.A.No.97 of 2010
2. The first respondent is the owner of a mini lorry and the second respondent is the owner of a pick up van. It was alleged that on 18.06.2010, both the above vehicles were used to transport 37 pieces of different species of forest timber illegally felled from the property belonging to one Josepheena @ Thankama, situated in Kuttampuzha Village. The vehicles were seized by the forest officials alleging commission of offences punishable under Section 27(d) and (e) of the Act. The mahazar was prepared and Crime No.8/10 of the Pooyamkutty Forest Station was registered. After investigation, final report was laid before the Judicial First Class Magistrate, Kothamangalam and the crime is pending.
3. The first revision petitioner herein, who is the authorized officer under Section 61A of the Act, initiated confiscation C.R.P.122/13 2 proceedings with respect to both the vehicles. After notice to all concerned, by order dated 09.09.2010, it was held that both the vehicles were used for transporting forest timber and thereby involved in the commission of the forest offences and ordered confiscation under Section 61A(2) of the Act. This was challenged by respondents 1 and 2 herein before the District Court, which allowed the appeal by the impugned judgment and ordered release of the vehicles. The legality and correctness of that finding is challenged in this revision.
4. The short question on which the entire issue is formulated is whether the vehicles were involved in the transportation of any forest timber. Admittedly, Josepheena @ Thankama had been issued a pattayam under the Kerala Land Assignment (Regularization of Occupation of Forest Lands prior to 1-1-1977) Special Rules, 1993 (for short, "the Special Rules"). The precise contention set up by the owners of the vehicles was that trees were allegedly cut from the pattayam land and there was no prohibition in cutting such trees.
5. The species of trees allegedly cut are Jackfruit trees, Maruta, Angili, Venga, Mango tree and Payyani. A schedule is seen incorporated in the Pattayam, which refer to the few species of C.R.P.122/13 3 trees by name, which are teak, Anjili, Maruta, Vellilavu, Cheeni and Mullu venga. The first condition in the pattayam is that the entire right over all forest trees standing in the assigned land and specifically referred to in the Schedule vests with the government forest department, and the assignee is bound to maintain all trees existing at the time of assignment and such trees as may be grown in the property later. Second condition is that the assignee shall assist the forest officials to enter the property to inspect such trees, from time to time and if necessary, to remove such trees. However, Clause 7 of Order of Assignment of Registry enjoins that '"identified forest trees, viz, teak, rosewood, sandalwood, blackwood, ebony, etc, and mentioned in the Kerala Preservation of Trees Act, 1986 (Act 35 of 1986) in the land shall be accounted and preserved by Forest Department". Evidently, the assignment order refers to the preservation of Trees Act, though the pattayam does not refer to that Act. However, both the documents denote the trees as "forest trees". The Preservation of Trees Act does not define "forest tree". It defines only "tree" under Section 2(e) with reference to the specific species of trees mentioned therein. The trees mentioned therein are sandal wood, teak, rosewood, irul, thempavu, kampakam, chempakam, chadachi, chandana vempu and cheeni. C.R.P.122/13 4 Since "forest tree" is not defined, the term can have only the literal meaning of trees grown in a forest. The contention of the owners of the vehicles was that if few trees other than those referred to in the Kerala Preservation of Trees Act, 1986 (Act 35 of 1986) (for short, "Preservation of Trees Act") are mentioned in the order of assignment or patta, either mistakenly or fraudulently, that did not create any legal obligation on the assignee to preserve such trees.
6. However, the pattayam is the formal document of title and is issued in accordance with Form 6 of the Special Rules and hence, it is liable to be relied on as the formal deed of title. The restriction imposed in Pattayam is absolute and without reference to any restriction imposed by any statute. Hence, the covenant binds the parties, runs with the land and the assignee and his successors in interest, are not entitled to cut any tree mentioned in the Schedule of the pattayam. Since the land assigned once formed part of forest and was assigned to the holder, being the person in possession prior to 1977, only by virtue of the Special Rules, the assignment is not unconditional, but restrictive, subject to the Rules and conditions incorporated in the pattayam.
7. Now it has to be examined whether cutting of the trees covered by Pattayam issued under the Special Rules constitute a C.R.P.122/13 5 forest offence as defined under Section 2(c) of the Forest Act. Admittedly, none of the trees which were allegedly transported by the respondents is included in 10 species of trees specifically referred to in Section 2(e) of the Preservation of Trees Act. However, among the several species of trees that were cut and removed, the trees specifically referred to in the patta are anjili and maruta. Hence, the issue involved in the present case narrows down to whether the act of transporting the above two species of trees referred to in the patta, but are not covered by Section 2(e) of the Preservation of Trees Act, amounts to an offence. In other words, whether cutting of any tree mentioned in the patta, but, not forming the species of trees mentioned in Section 2(e) of the Preservation of Trees Act, casts any criminal liability.
8. Rule 13 of the Special Rules provides that "the trees as defined in the Preservation of Trees Act 1986, as described in the patta issued to the assignee shall be accounted for and preserved by the Forest Department." Relying on this, Mr.Mathew Kuriakose, the learned counsel for the respondents, contended that though condition no.1 of pattayam may appear to cover all trees mentioned in the Schedule, by virtue of Rule 13, the obligation of assignee was limited to such of the trees mentioned in the Schedule as are the C.R.P.122/13 6 trees covered by Preservation of Trees Act. The crux of the contention was that since the Rule applied only to trees as defined in the Kerala Preservation of Trees Act, the holder of pattayam was not statutorily bound to preserve such of the trees covered by the preservation of Trees Act, notwithstanding the mentioning of more species of trees in the Pattayam than covered by the Act.
9. The argument of the learned counsel was that though anjili and maruta, which were the only two species of trees referred to in the patta and were allegedly transported by the respondents, were not trees covered by the Preservation of Trees Act, it does not amount to commission of a forest offence. It was further contended that when the Special Rules and the Preservation of Trees Act do not bar or impose any restriction with respect to trees other than the 10 species of trees specifically named in the Preservation of Trees Act, the revenue authorities while issuing the patta could not have imposed a further restriction regarding other trees also. It was contended that when the Rules specifically refer to trees as defined in Preservation of Trees Act, the obligation of the assignee was confined to such trees alone, and even if more trees are referred to in the pattayam, it was inconsequential, being in excess of Rules. A further contention was set up that even assuming that C.R.P.122/13 7 the cutting of trees other than those mentioned in the Preservation of Trees Act are prohibited, by virtue of being included in the patta and thereby casts a criminal liability, it should not implicate respondents herein, since such restriction was not known to the respondents. The premise of such contention was that, if there is restriction in the patta with regard to trees in excess of the enabling statute, that binds the assignor only and being a question of fact, a third party can legitimately set up a plea of ignorance of fact, though he cannot plead ignorance of law.
10. Mr. M. P. Madhavankutty, learned Spl. Government Pleader (Forest) who effectively countered the above contention pointed out that Preservation of Trees Act is a distinct statute specifically enacted, for the purpose of restricting the indiscriminate felling and destruction of trees in the State of Kerala resulting in considerable soil erosion and destruction and loss of the timber wealth of the State, though, the Act is confined to 10 named trees mentioned therein and the restriction under the Act was subject to Section 5 of the Act. However, the Special Rules were issued by the Government invoking powers under Section 7 of the Kerala Government Land Assignment Act, 1960. It provides for assignment of land alone, which were in possession of the C.R.P.122/13 8 occupants prior to 1977.
11. It is pertinent to note that the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995 (for short, "the 1995 Rules") were promulgated by the Government invoking the powers conferred under Section 30(c), Section 76(f) and (g) of the Kerala Forest Act. Section 30(c) of the Act authorizes the Government to frame Rules to regulate or prohibit the cutting, sawing, conversion and removal of trees and timber, its collection and its removal. Section 76(f) empowers the Government to frame of Rules to regulate or prohibit, the felling cutting and such other activities of trees standing on land temporarily or permanently assigned, the right of Government over which has been expressly reserved in the deed of grant. The 1995 Rule is intended to impose a restriction with respect to the trees which stand in the assigned land. Rule 3 declare that all trees, standing on lands temporarily or permanently assigned, the right of the Government over which has been expressly reserved in the deed of grant or order of assignment of such land, shall be the absolute property of Government. Rule 4 prohibit, felling, cutting or maiming of any tree covered by Rule 3, without the sanction of the competent authority. An infringement of the above Rule is an C.R.P.122/13 9 offence punishable under Rule 7. Section 2(c) of the Forest Act defines a forest offence as an offence punishable under the Forest Act or Rules made thereunder. Consequently, an act liable for punishment under Rule 7 of 1995 Rules falls within the definition of a forest offence and hence liable for confiscation proceedings under Section 52 of the Forest Act.
12. Evidently, the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) 1995 Rules, the Kerala Land Assignment (Regularization of Occupants of Forest Lands prior to 1.1.1997) Special Rules, 1993 and Preservation of Trees Act operate for three different specific objects and purposes. With respect to a land covered under the Special Rules, 1993, both the Preservation of Trees Act and 1995 Rules apply with respect to the trees covered thereby. The assignee is bound by the terms of the pattayam and are bound to preserve all trees, mentioned in pattayam, notwithstanding that they may not be covered by the Preservation of Trees Act. Reading down or narrowing scope of a clause in the patta on the basis of the Preservation of Trees Act alone, will be amounting to doing violence to the restriction under which the grant was made. Cutting of such trees may visit with penal consequences under the Kerala Forest C.R.P.122/13 10 Act.
13. This is essentially because the object of the above Statutes and Rules include Preservation of ecological balance, protection of soil and other issues which have a direct bearing on the sustenance and protection of environment. The need for strict interpretation of statutes intended for protection of the forest wealth, which is a treasure of the nation, has been considered in the various decisions of this Court earlier. In Baby v. The Forest Range Officer (1986 (2) ILR Kerala 57), the learned Single Judge had held that when the legislature had taken note of the colosal depredation of the forest wealth, and when it is scientifically established that such wanton waste of forest-cover would take the country perilously near desertification and a total disturbance of the ecology and environment, the court should be slow to give a narrow interpretation to well-meant statutory provisions. This was approved by the decision in Divisional Forest Officer v. Balakrishnan (1986 KLT S.N.61 page 38), wherein it was held that under Article 51A of the Constitution of India, it is fundamental duty of every citizen to safeguard the forest wealth and an assault on the forest wealth of the country has therefore necessarily to be viewed with all seriousness. The necessity of C.R.P.122/13 11 giving strict interpretation while interpreting the confiscatory provisions of the Act, which otherwise would lead to disastrous consequences of forest wealth, which is a very endangered bounty of nature, was reiterated by this Court in the decisions in State of Kerala v. Mathew (1995 (2) KLT 772) and in State of Kerala v. Marina Varghese (1999 (2) KLT 469). The Constitutional mandate under Articles 48A and 51A(g) and the statutory obligation imposes an obligation on the assignee also to preserve such trees in trust for the Governemnt.
14. In the light of above, with respect to the land covered by patta issued under the Special Rules, the 1995 Rules also apply. Otherwise, there was no purpose in mentioning such trees specifically in the schedule. Hence, cutting, removal and transportation of atleast two species of trees, though they are not covered by the Preservation of Trees Act are cognizable as an offence under 1995 Rules and thereby under the Forest Act also. This legal position has not been taken note by the court below. Hence, the finding of the court below to the above extent relying on the Preservation of Trees Act alone, is not legally sustainable and is a manifest error committed by the court below. Since the court below allowed the appeal on a legal interpretation, the lower C.R.P.122/13 12 appellate court did not consider the other defences if any, available to the respondents. Hence, the matter requires a fresh consideration by the lower appellate court in the light of the legal principle referred above.
In the result, the revision is allowed. The impugned order is set aside and the matter is remitted to the court below for a fresh consideration in the light of the legal conclusion arrived at as above. Both sides shall appear before the lower appellate court on 24.11.2015.
Sd/-
SUNIL THOMAS Judge Sbna