IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 6TH APRIL 2010 / 16TH CHAITHRA 1932 CRP.No. 562 of 2009() ----------------------------- CMA.11/2007 of DISTRICT COURT,THODUPUZHA .................... REVN. PETITIONER(S): APPELLANTS ---------------------------------- 1. M/S.FATHIMA TRADERS OORKAD, KOVILOOR P.O.,MUNNAR, IDUKKI DISTRICT REPRESENTED BY ITS MANAGING PARTNER ABDUL SAMAD C.I, S/O.C.M.IBRAHIM MOULAVI FATHIMA MANZIL, PALLARIMANGALAM PO,POTHANIKAD ERNAKULAM DISTRICT. 2. ABDUL SAMAD .C.I S/O.C.M.IBRAHIM MOULAVI FATHIMA MANZIL, PALLARIMANGALAM PO,POTHANIKAD ERNAKULAM DISTRICT. 3. K.N.BABY, S/O.LATE NARAYANAN KOLLAMMMAVUKUDIYIL HOUSE, ADIMALI P.O., IDUKKI DISTRICT REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ABDUL SAMAD C.I, S/O.C.M.IBRAHIM MOULAVI FATHIMA MANZIL, PALLARIMANGALAM PO,POTHANIKAD,ERNAKULAM DISTRICT 4. K.H.SHEREEF, S/O.HASSAN,KOCHUPARAMBIL HOUSE, NADAKKAL PO, ERATTUPETTA, PALA, KOTTAYAM DISTRICT,REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ABDUL SAMAD C.I, S/O.C.M.IBRAHIM MOULAVI FATHIMA MANZIL, PALLARIMANGALAM PO,POTHANIKAD,ERNAKULAM DISTRICT 5. V.H.MUHAMMED, S/O.HAMSA,2/197, VAYALUMKAL HOUSE, ERATTUPETTA PO,MEENACHIL, KOTTAYAM DISTRICT,PETITIONERS 3-5 ARE REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ABDUL SAMAD C.I, S/O.C.M.IBRAHIM MOULAVI FATHIMA MANZIL, PALLARIMANGALAM PO,POTHANIKAD,ERNAKULAM DISTRICT BY ADV. MR.U.BALAGANGADHARAN CRP. 562/2009 RESPONDENT(S): RESPONDENT ------------------------- 1. STATE OF KERALA REPRESENTED BY DISTRICT COLLECTOR CIVIL STATION, PAINAVU PO, IDUKKI DISTRICT. 2. THE DIVISIONAL FOREST OFFICER MUNNAR DEVIKULAM P.O.,IDUKKI. R2 BY SPL.GOVERNMENT PLEADER MR.M.P.PRAKASH (FOREST) THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/03/2010, THE COURT ON 06/04/2010 PASSED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No. 562 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of April, 2010. ORDER In this Civil Revision Petition, the petitioner assails the order in C.M.A. 11 of 2007on the file of the District Court, Thodupuzha dated 4.8.2009, whereby the order passed by the Divisional Forest Officer was confirmed by the appellate court. 2. It is claimed that the first petitioner is the partnership firm and the second petitioner is its Managing partner. The firm is engaged in trading of eucalyptus timber. The firm owns one lorry by registration No. KL 7C 8505. It requisitioned the service of three other lorries. The firm had entered into a contract with one Mr. George to cut and remove eucalyptus trees from his property, which has an extent fo about 60 acres comprised in old Sy. No. 124/1A, Block 60 in Vattavada village in Devikulam Taluk. The CRP.562/2009. 2 agreement has been in force for more than three years. The firm is to obtain cutting permit from the Range Officer on the basis of a certificate of the Tahsildar Devikulam to cut trees from the patta land. It was after getting all the authorised documents that the transporting used to be done. Form No.III pass is obtained before the transport is done. 3. On 30.10.2006, when the four lorries commissioned by the firm was carrying 15 MT each of Eucalyptus trees from the patta land of George, vehicles were intercepted by the forest officials and the cargo was seized suspecting that the timber had been collected from the Government land. Even though all the necessary documents were produced, the authorities were not impressed. Thereafter confiscation proceedings under Section 61A of the Kerala forest Act were initiated against the four lorries. Petitioners 2 to 5 are the owners of the other three lorries. The allegation was that the Eucalyptus trees were cut from the Pampadum Shola Reserve forest CRP.562/2009. 3 and Shola National Park under the Munnar Wild Life Division. On the basis of an order obtained from this court the vehicles were got released after furnishing bank guarantees. 4. To the notice issued under Section 61B of the Act, defence statements were filed. It is stated that without hearing the petitioners in person and without any further notice, confiscatory orders were passed. According to them, none of the documents based on which order was passed were furnished to the petitioners. They were therefore unaware of the materials that were pitted against them. Accordingly, it is pointed out that the order is in gross violation of the principles of natural justice. It is also pointed out that the trees were cut from the private property and the proceedings were not legal. However, Divisional Forest Officer ordered confiscation proceedings. The matter was taken up in C.M.A before the District Court, Thodupuzha. The District Court confirmed the order. 5. Learned counsel appearing for the petitioners raised several points for consideration. It was contended CRP.562/2009. 4 that even the District Court was not certain whether the trees were cut from the forest area or from revenue tharissu land. Then the court goes on to say that even assuming that it is from revenue tharissu land, still it belongs to the Government and hence confiscation can be effected. Learned counsel pointed out that the question was whether if the trees were cut from the revenue tharissu land, provisions of the Kerala Forest Act could be invoked to confiscate the vehicles. Counsel pointed out that may be that they may be liable under Section 10 of the Land Conservancy Act, but by no stretch of imagination Section 61A proceedings are not sustainable. Under such circumstances, it could be said that the provisions of the Forest Act could not be invoked. 6. Learned counsel also pointed out that except for saying that Eucalyptus trees were cut from the revenue tharissu land and the stumps which were found in the respective reserve forest were the stumps of the trees which were cut by the petitioner's firm, no documents whatsoever CRP.562/2009. 5 were furnished to the petitioners to know the materials that were being used against them and except the objection filed by them they were not even heard. 7. Learned Government Pleader on the other hand points out that there is no basis for any of the above contentions. It was pointed out that the properties were measured and a sketch has been prepared by the Taluk Surveyor. That shows that the trees were cut from the forest area. It is also pointed out that the petitioners were not able to satisfactorily explain possession of the cargo and that too leads to an inference that it was got from the forest area. 8. The main issue therefore is whether there are materials to show that the Eucalyptus trees were cut from the forest area. The petitioners have a case that they were not given an opportunity of being heard under Section 61B (c) of the Kerala Forest Act. That according to them is in violation of the principles of natural justice. At the time of hearing, the notice issued to the petitioners was handed CRP.562/2009. 6 over for perusal. It is seen stated therein that the main allegation is that Eucalyptus trees were cut from the revenue tharissu land. True, it is also mentioned that it lies close to the forest area. The order passed by the authorised officer does not indicate that the petitioners were given a hearing in the matter. These aspects, though highlighted before the appellate court, appears to have not been considered by the appellate court. 9. It is not in dispute that the four lorries were carrying Eucalyptus billets. It was also pointed out at the time of hearing that before the actual interception was made, the vehicles had passed through three check posts and none of the officers in the check posts objected to the transport of timber. The petitioners have referred to several enactments and tried to point out that none of the provisions of any of the enactments is attracted to the facts of the case. 10. It is not necessary to go into those aspects. The question is whether there are materials to show that the CRP.562/2009. 7 timber in question is forest produce as contemplated under the Forest Act. It seems that both the forest officer as well as the court below placed considerable reliance on the survey plan prepared by the Taluk Surveyor. On resurvey, according to the defendants, it was found that a portion of the land from where trees were cut was comprised in the forest area. A large extent of property from where the trees appears to have been cut appears to be Government land. It must further be noticed that the measurement and the sketch were prepared without notice to the petitioners nor they were furnished with copy of the same. 11. It may be recollected that the case of the petitioners is that the firm had entered into a contract with one George and his statement was taken. His statement showed that the agreement alleged by the petitioners had been entered into by him. He also stated that from 2004 onwards the cutting has been going on. It is seen from the impugned orders that the statement of the lorry drivers were also taken. But they were unable to give any useful CRP.562/2009. 8 information. Further the courts below noticed that the stumps of the cut trees were identified and it showed that the Eucalyptus trees were cut from the forest area. 12. It may not be sufficient to show that Eucalyptus trees were seen cut from the forest area. It is to be further shown that the billets that were seen being transported were of those trees, the stumps of which had been noticed by the forest offices. This link has to be established. There is no acceptable finding either by the authorised officer or by the District Court in this regard except by saying that the stumps show the identity. One must also remember at this stage that the petitioners have a case that they were not given a personal hearing. 13. It is true that there is a presumption under Section 69 of the Forest Act. That presumption only extends to holding that if a question arises as to whether any forest produce is the property of the Central or State Government, such produce shall be presumed to be the property of the Central or State Government, as the case may be, until the CRP.562/2009. 9 contrary is proved. To attract the presumption, it has to be shown that it is a forest produce. In the case on hand it has to be shown that the Eucalyptus trees were cut from the forest area. On a reading of the order of the District Court, it seems that the learned Judge was not very sure that it was from the forest area or from the revenue tharissu land. The court goes on to say that even assuming that it is from revenue tharissu land, the cutting was illegal. But as rightly pointed out by the learned counsel for the petitioners if the trees are cut from the revenue tharissu land, it is to be ascertained whether it can be called as forest produce. There are no definite finding by the court below that Eucalyptus billets that were being transported were cut from the forest area. May be that the trees were cut from the revenue tharissu land. As has rightly pointed out it may attract the provisions of other enactments. The conclusion drawn by the lower court does not appear to be very convincing enough. It is felt that a reconsideration of the matter is necessary at the hands of the lower court. CRP.562/2009. 10 In the result, this appeal is allowed, the impugned orders are set aside and the matter is remanded to the District Court for a fresh consideration in accordance with law and in the light of what has been stated above. The parties shall appear before the lower court on 8.4.2010. The court shall make every endeavour to dispose of the matter as expeditiously as possible. P. BHAVADASAN, JUDGE sb.