IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WP(C).No. 18493 of 2006(B) -------------------------- CMA.39/2004 of DISTRICT COURT,THODUPUZHA .................... PETITIONER(S): --------------- P.J.ANTONY,AGED 68,S/O.LATE OUSEPH, PARAYIL HOUSE,MARAYOOR, DEVIKULAM TALUK. BY ADV. SRI.SAIBY JOSE KIDANGOOR SRI.BENNY ANTONY PAREL RESPONDENT(S): --------------- 1. THE DIVISIONAL FOREST OFFICER,MUNNAR. 2. THE STATE OF KERALA, REP.BY THE SECRETARY TO THE GOVERNMENT, FOREST DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SPECIAL GOVERNMENT PLEADER SHRI P.M.PAULOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2010, ALONG WITH WPC NO. 19478 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.18493/2006 ORDER ON IA NOS.13125, 13569, 15236 AND 15746/2008, 787/2009 & 9400/2010 AND C.M.APPLN.NO.5431/2008 CLOSED 13.08.2010 Sd/- THOMAS P.JOSEPH, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXT.P1 A TRUE COPY OF THE GOVT. ORDER GO(MS) NO.126/73/AD, AGRICULTURE (FOREST) DEPARTMENT DATED 3.4.73 EXT.P2 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 25.3.2001 EXT.P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE TAHSILDAR, DEVICOLAM TALUK OFFICE DATED 13.12.2000 EXT.P4 A TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, MARAYOOR DATED 10.2.2001 EXT.P5 A TRUE COPY OF THE SKETCH AND REPORT PREPARED BY THE TALUK SURVEYOR DEVICOLAM DATED NIL EXT.P6 A TRUE COPY OF THE LETTER ISSUED BY THE TAHSILDAR DEVICOLAM TALUK OFFICE IN THAT REGARD DATED 29.1.2001 EXT.P7 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER MARAYOOR DATED 22.11.2002 EXT.P8 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE TAHSILDAR TO THE PETITIONER DATED 20.9.2001 EXT.P9 A TRUE COPY OF THE SEIZURE MAHAZAR BY THE FOREST RANGE OFFICER DATED 11.7.2001 EXT.P10 A TRUE COPY OF THE SAID ORDER PASSED BY THE FIRST RESPONDENT DATED 16.1.2002 EXT.P11 A TRUE COPY OF THE ORDER IN REVISION PASSED BY THE CONSERVATOR OF FOREST, KOTTAYAM DATED 26.11.2002 EXT.P12 A TRUE COPY OF THE JUDGMENT IN OP NO.12359/2003 DATED 8.4.2003 EXT.P13 A TRUE COPY OF ONE SUCH APPLICATION SUBMITTED BY THE PETITIONER DATED 21.4.2003 EXT.P14 A TRUE COPY OF THE JUDGMENT OF THIS COURT IN OP 13872/2003 DATED 1.8.2003 EXT.P15 A TRUE COPY OF THE SAID NOTICE DATED 7.10.2003 EXT.P16 A TRUE COPY OF THE DEPOSITIONS OF VARIOUS WITNESSES EXAMINED AND CROSS EXAMINED BY THE FIRST RESPONDENT WP(C) NO.18493/2006 EXT.P17 A TRUE COPY OF THE PROOF AFFIDAVIT SUBMITTED BY THE PETITIONER ACCEPTED BY THE FIRST RESPONDENT ON 12.11.2003 EXT.P18 A TRUE COPY OF THE SAID ORDER DATED 23.2.2004 EXT.P19 A TRUE COPY OF THE SEIZURE REPORT OF DEPUTY RANGER IN CHARGE, MARAYOOR FOREST STATION DATED8.4.2002 EXT.P20 A TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIOENR DATED 1.4.2004 EXT.P21 A TRUE COPY OF THE SAID APPLICATION BY THE SAID THANKAMMA CYRIAC BEFORE THE FIRST RESPONDENT DATED 10.12.99 EXT.P22 A TRUE COPY OF THE COMMUNICATION BY THE RANGE OFFICER, MARAYOOR TO THE DFO MUNNAR DATED NIL EXT.P23 A TRUE COPY OF THE JUDGMENT IN CMA NO.39/2004 DATED 5.11.2005 OF THE DISTRICT COURT, THODUPUZHA EXT.P24 TRUE COPY OF THE SEIZURE REPORT DATED 11.7.2001 ISSUED BY THE FOREST RANGE OFFICER EXT.P25 TRUE COPY OF THE JUDGMENT IN CMA NOS.644/01,645/2001, 646/2001, 677/2001, 678/2001, 2/02, 3/02 AND 7/02 DATED 10.1.2007 OF ADDL.DISTRICT JUDGE, THODUPUZHA EXT.P26 TRUE COPY OF APPLICATION DATED 24.10.2008 EXT.P27 TRUE COPY OF THE REPORT DATED 28.11.2008 EXT.P28 TRUE COPY OF THE PROCEEDINGS IN ORDER NO.M5.4487/2001 DATED 2.11.2001 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) Nos.18493 & 19478 of 2006 -------------------------------------- Dated this the 13th day of August, 2010. JUDGMENT These Writ Petitions are in challenge of judgment of the learned District Judge, Thodupuzha in C.M.A.No.39 of 2004 preferred by the petitioners challenging Ext.P18 (in W.P.(C) No.18493 of 2006), order of confiscation passed by the D.F.O.,Munnar (for short, “the Authorised Officer”) on 23.02.2004 under Section 61A(2) of the Kerala Forest Act (for short, “the Act”). Initially the Authorised Officer had issued Ext.P10, order of confiscation dated 16.01.2002 which petitioners challenged before the Conservator of Forest who, by Ext.P11, order set aside Ext.P10, order and directed the Authorised Officer to conduct a denova enquiry into the matter. The Authorised Officer conducted an enquiry thereafter which culminated in Ext.P18, order. As per the said order 84 logs of sandal wood trees including the root etc. (for short, ”the trees”) have been confiscated to the Government relying on the presumption under Section 69 of the Act. Petitioners challenge the said order as confirmed by the learned District Judge. According to the petitioners Section 61A of the Act has no application in the present case since there is no case or evidence that any “forest offence” as defined in the Act has been committed in respect of the trees in question. Nor has the Authorised Officer been satisfied that any forest offence has been committed in respect of the trees. According to the learned counsel, even on the showing of the forest officials offence allegedly committed in respect of the WP(C) Nos.18493 & 19478/2006 2 trees, if any, is only under the Kerala Preservation of Trees Act, 1986 (for short, “the KPT Act”) which is not a “forest offence” as defined in the Act and hence no question of confiscation under Section 61A(2) of the Act arose. It is contended by learned counsel that on the materials collected in the enquiry the Authorised Officer was not correct in holding that the property seized is property of the Government applying presumption under Section 69 of the Act. It is contended that materials on record are sufficient to hold that the trees were collected from patta lands of petitioners and hence the procedure prescribed by the Government as per Ext.P1, notification ought to have been followed. In response, it is contended by learned Special Government Pleader appearing for respondents that a reading of Ext.P18, order supported by the materials on record is sufficient to show that the Authorised Officer was satisfied that a “forest offence” as understood in the Act has been committed and, on the materials on record she was justified in drawing a presumption under Section 69 of the Act. According to the learned Special Government Pleader, contention of petitioners that the trees standing in their patta lands fell down in the wind due to oldness and damage and were collected by them as directed by the forest officials cannot be accepted for a moment. The materials on record is consistant with the presumption drawn by the Authorised Officer that the trees belonged to the Government. That presumption has not been rebutted by petitioners and hence order of confiscation issued by the Authorised Officer is legal and valid. District Judge has correctly appreciated the materials on record. Learned Special Government Pleader cautioned this Court that concurrent finding of WP(C) Nos.18493 & 19478/2006 3 fact entered by the Authorised Officer and the learned District Judge cannot be interfered by this Court under Article 226 of the Constitution. Reliance is placed on the decision in Surya Dev Rai v. Ram Chander (2003 (3) KLT 490). 2. To understand the rival contentions, it is necessary to refer to the facts of the case. Petitioner in W.P.(C) No.18493 of 2006 (P.J.Antony) is the owner in possession of 4.70 hectars (roughly 10.8 acres) of patta land in R.S.Block No.47, Survey Nos.86/3, 86/4 of Marayoor Village. Petitioner in W.P. (C) No.19478 of 2006 (Cheriyan Kuruvila) is the owner in possession of 1.0940 hectars (roughly 2.50 acres) of patta land in Survey No.86/5 of the same Village. It is not disputed that the said lands are patta lands assigned to the said persons in accordance with the relevant Rules and hence they are owners in possession of the said lands. Evidence on record show that the said persons are owners of certain other patta lands as well. On 13.12.2000 petitioners submitted application to the Tahsildar, Devikulam (Ext.P3, in W.P.(C) No.18493 of 2006) to issue a certificate to entrust the fallen sandalwood trees (in their patta lands) to the Forest Department as per Ext.P1, notification issued by the State Government as per which provision was made for auctioning of sandalwood trees collected from patta lands. As per that scheme 70% of the sale proceeds goes to the owner while the remaining 30% was to go to the Government. On receipt of the said application the Tahsildar, Devikulam issued direction to the Taluk Surveyor concerned to issue sketch (of the patta lands of petitioners where from the trees were allegedly collected) showing the place WP(C) Nos.18493 & 19478/2006 4 where in the property of petitioners the fallen trees are lying. The Taluk Surveyor is said to have inspected properties and on being satisfied that the trees were fallen in the patta lands of petitioners issued Ext.P5, certificate dated 22.01.2001. As per direction issued by the Tahsildar, the Village Officer, Marayoor inspected patta land of petitioners and issued Ext.P4, certificate dated 10.02.2001. While so petitioners submitted Ext.P2, application dated 25.03.2001 to the D.F.O. stating that 50 fallen trees in the property of P.J.Antony and 26 fallen trees in the property of Cheriyan Kuruvila (petitioners herein) have been collected and stacked in premises of petitioners and requesting the Department to take action (in accordance with Ext.P1, notification). The sketch issued by the Taluk Surveyor and the certificate issued by the Village Officer (supra) were appended to Ext.P2, application. On 11.7.2001 the Range Officer, Marayoor “seized” altogether 84 logs of trees from the premises of petitioners as per Ext.P9, mahazar. The Range Officer is said to have forwarded a report dated 25.01.2002 to the D.F.O.(Authorised Officer) which was to the effect that no evidence could be collected from the site (patta lands of petitioners) that the trees were collected from the said lands and since there were incidents of trees being stolen from the forest land such a possibility has to be doubted. On 16.01.2002 the Authorised Officer issued Ext.P10, confiscation order which was set aside by the Conservator of Forest as per Ext.P11 and it is thereafter that the present enquiry was conducted which culminated in Ext.P18, order. Questions that arise for determination in these Writ Petitions are whether the Authorised Officer was legally correct in ordering WP(C) Nos.18493 & 19478/2006 5 confiscation of the trees in exercise of power under Section 61A(2) of the Act as if a forest offence has been committed in respect of the trees in question and whether on the materials on record Authorised Officer and the learned District Judge were legally correct in coming to the conclusion that the trees belonged to the Government. 3. In Surya Dev Rai v. Ram Chander the Supreme Court has laid down the parameters for High Courts to interfere with interlocutory orders passed by the Subordinate Courts and Tribunals in exercise of its power under Article 227 of the Constitution. It is stated that High Courts need interfere only when the lower authority has exceeded its power, refused to exercise its power or has acted in perverse manner. But, when the finding of fact goes to the root of the jurisdiction of the lower authority, it is within the power of High Court under Article 227 of the Constitution to look into whether that finding of fact is supported by any materials on record. 4. It is relevant to note that Ext.P10, confiscation order is dated 16.01.2002 which ofcourse was set aside by the Conservator of Forests as per Ext.P11 while even as per statement in Ext.P18 and I find from the file of learned Special Government Pleader that seizure of the trees was as per Ext.P9, mahazar dated 11.07.2001 and the Range Officer who said to have seized the same is said to have submitted a report to the Authorised Officer on 25.01.2002 suspecting possibility of theft of the trees from reserve forest. In otherwords the report which the seizing officer was required to submit to the Authorised Officer under Section 61A(1) of the Act came to the Authorised WP(C) Nos.18493 & 19478/2006 6 Officer only on 25.01.2002 while Ext.P10, order of confiscation was passed on 16.01.2002. Section 61A of the Act states that when the Forest Officer referred to therein has reason to believe that a “forest offence” is committed in respect of the property of the Government it is within his power to seize the timber, etc. together with vehicles, etc. used to commit such offence. He is to produce the said articles before the Authorised Officer without further delay with his report. Under Section 61A (2) of the Act the Authorised Officer is to conduct an enquiry in the matter and on being satisfied that a “forest offence” has been committed in respect of such property (ie. the property of the Government), the authorized officer is to confiscate such property together with the vehicle, etc. Section 69 of the Act enables the Authorised Officer to draw a presumption when any proceeding is taken under the Act or in consequence of anything done under the Act that any forest produce is the property of the Central or State Government. No doubt Section 69 of the Act enabled the Authorised Officer to presume that the trees in question belonged to the Central or State Government. But the question is whether confiscation proceeding itself was permissible under Section 61A of the Act. That provision says that notwithstanding anything contained in the foregoing provisions of the Act where a “forest offence” is believed to have been committed in respect of timber, charcoal, firewood or ivory which is the property of the Government, the officer seizing the property under Sub-section (1) of Section 52of the Act shall produce the same before the authorized officer. In the light of Sections 61A(1) and (2) of the Act it must be shown that the seizing officer had reason to believe that a “forest offence” has been committed WP(C) Nos.18493 & 19478/2006 7 in respect of such property and that Authorised Officer is satisfied that such a “forest offence” has been committed to enable the former to seize the property and the latter to confiscate the same. “Forest offence” is defined in Section 2 (e) of the Act as meaning “an offence punishable under this Act or any rule made thereunder”. Section 30 of the Act enables the Government to make Rules to carry out the objects of the Act. It follows that it is only when an offence punishable under the Act or any of the Rules made thereunder is believed to have been committed that property could be seized by the seizing officer, and on the part of the Authorised Officer, he must be satisfied that such an offence has been committed. Then alone confiscation of the property under Section 61A(2) of the Act is possible. 5. Though in Ext.P9, mahazar prepared by the Range Officer on 11.07.2001 and Ext.P18, order of confiscation issued by the Authorised Officer it is stated that it was “on getting secret information” that the trees had illicitly been stacked in the premises of P.J.Antony (petitioner in W.P.(C) No.18493 of 2006) that Range Officer effected seizure (as per Ext.P9, mahazar dated 11.07.2001), it is interesting to note that even much before that, fact of the trees being stacked in the premises of petitioners had been intimated to the authorities concerned vide Exts.P2 to P5. In fact the Range Officer (Shri Udayakumar) has stated in the enquiry about the application submitted by petitioners to the DFO being forwarded to him for action but expressed his inability to proceed with the WP(C) Nos.18493 & 19478/2006 8 matter on account of financial difficulty for the department. Therefore it is not as if on 11.07.2001 on getting “secret information” about stacking of trees in the premises of petitioners the Range Officer seized it as per Ext.P9, mahazar. It is pertinent to note that following the seizure of trees as per Ext.P9, mahazar Range Officer registered a case for offence punishable under the KPT Act. . Ofcourse learned Special Government Pleader would invite my attention to the copy of the crime and occurrence report in the files of the Government where there is no mention about the offence punishable under the KPT Act. I must bear in mind that copy of OR is one issued to the petitioners from the Department which contains a mention that the offence committed is under the KPT Act. It is also clear from the statement of Range Officer, Udayakumar recorded by the Authorised Officer that the offence he detected was under KPT Act. He stated in unmistakable terms in answer to a question why he stated in Ext.P9 that the trees were “unauthorisedly” stacked in the premises of petitioners that he meant that it was in violation of the KPT Act. When the question was further pursued he stated that he has not conducted further enquiry since by that time he was transferred. Learned Special Government Pleader argues that evidence of the Range Officer cannot be looked into since he could not be examined or cross examined in the enquiry. That argument, I am unable to accept. The Authorised Officer has examined the Range Officer as a witness. Having examined the Range Officer and permitted petitioners to cross examine him it is idle to contend that his statement shall not be looked into. Thus, going by the statement of Range Officer it is clear that the offence WP(C) Nos.18493 & 19478/2006 9 which according to him was (allegedly) committed in respect of the trees in question was one under the KPT Act. There is no case or evidence that the crime case in the matter was further investigated and commission of any different offence was revealed at any point of time. Hence I am to presume that so far as forest officials are concerned, the offence allegedly committed in respect of the trees in question is one under the KPT Act. The KPT Act is not an enactment made under the Act and hence violation of provisions of the KPT Act which is punishable under the provisions of the said Act cannot be treated as a “forest offence” as defined in Section 2(e) of the Act. As stated earlier, the Range Officer could seize the trees under Section 61A(1) of the Act only if he had reason to believe that a “forest offence” has been committed and the Authorised Officer could order confiscation only on being satisfied that a “forest offence” has been committed in respect of the trees in question. Even on the showing of the forest officials, offence alleged to have been committed in relation to the trees in question is only under the KPT Act and that admittedly does not amount to a “forest offence” and hence application of Section 61A of the Act does not arise. I must bearing in mind that the presumption under Section 69 of the Act is not regarding commission of offence but only as to the ownership of timber etc. stated therein. 6. Petitioners have a contention that they were not issued a proper notice as contemplated under Section 61B(1) of the Act. Learned counsel argued that the notice preceding the order of confiscation must state the grounds on which confiscation is proposed to be made. Learned Special WP(C) Nos.18493 & 19478/2006 10 Government Pleader states that such a contention cannot be allowed at this stage since with reference to the notices issued to them though not mentioning the grounds on which confiscation was proposed, petitioners took part in the enquiry, cross examined witnesses and gave evidence on their part. 7. I have been shown a copy of notice issued to the petitioners. The notices only required petitioners to adduce evidence to show that the trees in question were collected from their patta lands. There is no mention of the grounds on which confiscation was proposed to be made. But I am not impressed by the argument of learned counsel for petitioners that since the notices are not in confirmity with Section 61B (1) of the Act, order of confiscation (Ext.P18) must fall to the ground. Petitioners participated in the enquiry with full knowledge about the facts of the case, cross examined witnesses and gave evidence on their side. In such a situation at this stage petitioners cannot challenge validity of the said notices. But I must bear in mind that even in the notices the Authorised Officer did not say that any “forest offence” has been committed in respect of the trees in question which has to be taken into account while considering whether the Authorised Officer was satisfied that a “forest offence” as defined under Section 2(e) of the Act was committed in respect of the trees in question which should be the basis for a confiscation under Section 61A(2) of the Act. 8. I stated that as per the stand of the Range Officer who seized the trees as per Ext.P9, mahazar dated 11.07.2001 offence allegedly committed in relation to the said trees was under the KPT Act. Learned Special Government WP(C) Nos.18493 & 19478/2006 11 Pleader was not able to show from the file concerned that petitioners or anybody else is alleged to have committed any offence punishable under the Act or rules thereunder. True, a prosecution is not a pre-condition for ordering confiscation. But the Authorised Officer must have been satisfied of commission of a “forest offence” punishable under the Act or the rules made thereunder. In Ext.P18, order Authorised Officer has only left open so many possibilities such as the trees could have been uprooted from other patta lands belonging to the petitioners (in which case again the offence must be one under the KPT Act), revenue puramboke or even the reserve forest adjoining patta lands of petitioners. It is not sufficient that the Authorised Officer has left open so many possibilities in the matter. On the materials on record Authorised Officer must be satisfied of the commission of a “forest offence” under the Act or Rules made thereunder which alone can be the basis of a confiscation under Section 61A (2) of the Act. Presumption under Section 69 of the Act cannot help the Authorised Officer in this regard. That presumption is limited to presuming that property is that of the Central or State Government. There can be no presumption regarding commission of offence. No doubt possession of Government property without authority can be said to be an offence punishable under Section 27(d) of the Act. But there again it must be shown that petitioners knowingly received or had in their possession of a forest produce illicitly removed from the reserved forest or a land proposed to be constituted a reserve forest. To attract the offence under Section 27(d) of the Act it must be shown that property which the department may presume to be that of Central or State Government was WP(C) Nos.18493 & 19478/2006 12 removed either from the reserve forest or land proposed to be reserve forest. What the Authorised Officer has made is only a guess work that the trees may have been collected either from other patta lands, revenue puramboke or reserve forest adjoining to patta lands of petitioners. That is not sufficient to attract offence under Section 27(d) of the Act also even if it is presumed that the produce in question are that of the Central or State Government as stated in Section 69 of the Act. 9. Learned Special Government Pleader has a contention that even as per the version of petitioners, an offence under the Kerala Forest Produce Transit Rules is committed. Learned Special Government Pleader stated that if the trees in question were collected from other patta lands of petitioners, to transport the same to the premises of one of the petitioners it required a pass as per the said Rules and if no pass was obtained, that amounted to violation of Rule 3 of the said Rules which is punishable under the said Rules and that attracted “forest offence” as defined under Section 2(e) of the Act. But it is not the case of petitioners that the trees in question were collected from their