Kerala High Court
Parvathy vs State Of Kerala on 3 November, 2010
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27959 of 2009(L)
1. PARVATHY, W/O.KUMARAN,
... Petitioner
2. ANU, S/O.GOPALAN,
3. LEKSHMY, W/O.LATE RAMANKUTTY,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DIVISIONAL FOREST OFFICER,
3. DIVISIONAL FOREST OFFICER,
4. RANGE OFFICER,
5. DEPUTY RANGER, SHOLAYOOR STATION,
For Petitioner :SRI.T.M.ABDUL LATHEEF
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :03/11/2010
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 27959 OF 2009 (L)
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Dated this the 3rd day of November, 2010
J U D G M E N T
Petitioners are having properties which formed part of an estate called K.G.P Estate situated in Sholayar Village. They submitted Exts.P8 to P10 applications seeking permission to cut and remove the timber mentioned therein invoking the provisions of the Kerala Promotion of Tree Growth in Non Forest Areas Act, 2005 (herein after referred to as "Act 46 of 2005"). After completing all formalities, they were issued permits. However, on the allegation that they did not cut and remove the trees within a period of three months, and that, they illegally cut and removed numerous timber from other areas, the Authorised Officer issued Exts.P11 to Ext.P13 notices, requiring the petitioners not to cut timber on the strength of the permits until further orders. It was thereupon that the writ petition was filed challenging Exts.P1 to P3 occurrence reports, which was registered against the petitioners on the allegation that they unauthorizedly cut and removed timber in violation of the provisions contained under Section 6 of Act 46 of 2005 and also Exts.P11 to P13 notices WPC No. 27959/09 :2 : referred to above.
2. When the writ petition was taken up for hearing, counsel for the petitioners submitted that challenging Exts.P1 to P3 occurrence reports, which are now pending before the Judicial First Class Magistrate Court, Mannarkkad, petitioners have already filed Criminal M.Cs before this Court. Therefore, no arguments in so far as the alleged illegality of Exts.P1 to P3 were addressed before me and this Court also did not go into that issue at all.
3. In so far as Exts.P11 to P13 are concerned, counsel for the petitioners contended that the permits were issued by the Authorised Officer exercising his powers under Section 6 of the Act. It is stated that powers of the Authorised Officer are delineated in the provisions of Act 46 of 2005 and that there is no power conferred either for suspending the permits issued under the Act or cancelling the same. It is stated that, therefore, Exts.P11 to P13 are issued illegally and without jurisdiction.
4. In support of his contention, apart from the provisions of the Act, learned counsel for the petitioner also relied on the judgment of this Court in Sukumaran v.State of Kerala (2010 (1) KLT 546).
WPC No. 27959/09 :3 :
5. On behalf of the respondents, learned Government Pleader made extensive reference to the statement and the counter affidavit filed. It was contended that after obtaining the permits, instead of cutting the trees as permitted, petitioners clear felled the area. It is stated that, as a result of the above, OR Nos.18/09, 19/09 and 20/09 were registered by the authorities. It is stated that the area in question is a notified one and a copy of notification has been produced as Ext.R2(a). Counsel contended that in view of the patent violation of the provisions of Act 46 of 2005, power was inherent in the authorities entitling them to cancel the permits which were issued under Section 6 of the Act. Learned Government Pleader also submitted that if such inherent power is not conceded, as against the avowed object of the Act 46 of 2005 to promote cultivation of trees, that will encourage destruction of tree growth in non forest areas. On this basis, learned Government Pleader contended that the authorities were perfectly justified in having issued Exts.P11 to P13 suspending the permits issued to the petitioners.
6. I have considered the submissions made.
7. The provisions of the Act have been surveyed in detail in Sukumaran v.State of Kerala (2010(1) KLT 546), para 15 to WPC No. 27959/09 :4 : 19 of the judgment being relevant, are extracted below for reference:-
15. Therefore if a tree is to be cut from a notified area, even if it is from a non forest land by its owner, permission is to be obtained as provided under S.6 (3) of the Act. If it is cut in violation of S.6(3) he is liable to be prosecuted for the offence under S.7 of the Act. If a tree is to be cut from a notified area, permission as provided under sub-s.(3) of S.6 of the Act, which is to be granted as provided under Rule 4 of the Kerala Promotion of Tree Growth in Non-Forest Land Rules 2006, is to be taken. If trees were cut and transported by the petitioners, from the private property of petitioners 4 to 8, as the property is situated within the notified area, and no permission was obtained for cutting the said trees as provided under S.6(3) of the Act or R.4 of the Rules, it cannot be said that petitioners cannot be prosecuted, for cutting or transporting the teak trees, as stated in Annexure-A report.
Therefore, eventhough petitioners cannot be prosecuted for the offence under the Kerala Forest Act, they are definitely liable for prosecution for the offence under S.7 for violation of S.6 of Kerala Promotion of Tree Growth in Non-Forest Act, 2005. Hence Annexure-A cannot be quashed.
16. True, Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 does not provide for confiscation, S.9 of the Act provides the power to seize timber and other articles involved in commission of the offence under the Act. Under sub-s.(1), where any officer of the Forest Department, not below the rank of a Forester, has reason to believe that any tree has been cut or any timber has been transported in contravention of S.6, he may seize the timber together with all tools, ropes, chains and other articles used in the WPC No. 27959/09 :5 : commission of such offence and all vehicles, boats or animals used for carrying such timber. Therefore the vehicle used for transporting the timber in contravention of S.6 is liable to be seized under sub-s.(1) of S.9. Under sub-s.(2), every officer seizing any timber under sub-s.(1), shall place on such timber a mark indicating that the same has been so seized and shall, as soon as may be, make a report of such seizure to the Divisional Forest Officer having jurisdiction over the area. Under sub-s.(3), the Divisional Forest Officer to whom a report is made under sub-s.(2), shall if he is satisfied that the timber mentioned in such report is of any tree transported in contravention of S.6, make a report of the seizure of such timber to the Judicial Magistrate of the First Class, having jurisdiction over the area in which such seizure has been made. On the other hand if he is not so satisfied, he shall order that such timber and any tool, rope, chain or other article; or any boat, vehicle or animal, seized along with it, be returned to the person from whom they were seized.
17. S.10 provides the power to release property seized under S.9. Under the said section, the Divisional Forest Officer, may release any tool, rope, chain or other article or any boat, vehicle or animal seized under S.9 in respect of which a report has been made to the Judicial Magistrate of the First Class under sub-s.(3) of that section, on execution by the owner thereof, of a bond for the production of the property so released, if and when so required, before such Magistrate.
18. S.11 provides that upon receipt of the report under cl.(a) of sub-s.(3) of S.9, the Magistrate shall take such measures as may be necessary, for the trial of the accused and disposal of the timber, tool, rope, chain or other article or any boat; vehicle or animal WPC No. 27959/09 :6 : seized along with it, according to law. S.13 provides for the cognizance of the offence. Under the Section, an offence punishable under this Act shall be tried before a court of Judicial Magistrate of the First Class having jurisdiction. S.12 provides that no prosecution shall be instituted against any person without the sanction of the Divisional Forest Officer.
19. The Act does not provide for confiscation. Therefore, petitioners are at liberty to approach the Divisional Forest Officer for releasing the vehicle as provided under S.10 of the Act. I do not believe that if an application is filed under S.10 of the Act, the Divisional Forest Officer will not pass orders in the application in accordance with law without delay. Hence though petitioners sought a direction, I do not find it necessary to grant.
8. A reading of the aforesaid judgment therefore shows that, the owners of non forest land other than small holders in a notified area, are entitled to cut and remove trees, other than sandal wood trees, only with prior permission in writing of the Authorised Officer and that such prior permission shall not be required for cutting and removing of trees mentioned in the schedule to the Act. As per the 4th proviso to Section 6(3), such permission mentioned in 2nd and 3rd provisos shall not be refused by the Authorised Officer, if the tree constitutes danger to life or property or is wind fallen. Consequence of non compliance with the provisions of Section 6 are contained in Section 7 providing WPC No. 27959/09 :7 : for penalty. A reading of the reports, which are enclosed to Exts.P8 to P10, shows that the trees in respect of which permits were issued, answers the description of trees in respect of which permits could be refused.
9. The Authorised Officer appointed under the Act is a creature of the statute. His powers are circumscribed by the various provisions contained in the Act. Admittedly, the provisions of the Act do not confer on him any power to cancel a permit issued under Section 6 of the Act. Act also does not confer on him any inherent power as canvassed by the learned Government Pleader. Therefore, if there is violation of the provisions of Section 6, apart from the power of launching prosecution against the offender, the Authorised Officer cannot initiate any proceedings for suspension or cancellation of the permits, which are validly issued by him under Section 6 of the Act. In this context, reference to the Apex Court judgment in Indian National Congress (I) v. Institute of Social Welfare (2002(5) SCC 685), is relevant. In that judgment, the Apex Court held that where (a) a statutory authority empowered under a statute to do any act (b) which would prejudicially affect the subject (c) although there is no lis or two contending parties and the contest is between the WPC No. 27959/09 :8 : authority and the subject and (d) the statutory authority is required to act judicially under the statute, the decision of the said authority is quasi judicial. Proceeding further, examining the scope of Section 29A of the Representation of People Act, the Court held the power to register political parties quasi judicial and that in the absence of express power of review conferred upon the Election Commission, the Commission has no power to de register a political party.
10. In my view, the principle laid down in the aforesaid judgment should apply to the facts of this case as well. In this case, although statute provides for grant of permit, the statute has not conferred power on the Authorised Officer for cancellation of permits. In the absence of such conferment of power, I cannot uphold Exts.P11 to P13 orders suspending the permits issued under Section 6 of Act 46 of 2005. In that view of the matter, Exts.P11 to P13 are to be quashed and I do so.
Writ petition will stand allowed to the extent of quashing Exts.P11 to P13.
ANTONY DOMINIC, JUDGE Rp