IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 WP(C).NO. 17144 OF 2008(N) -------------------------- {CMA.32/2004 OF ADDL. DISTRICT COURT, PATHANAMTHITTA} .................... PETITIONER(S): PETITIONER -------------------------------- THE CONSERVATOR OF FORESTS, SOUTHERN CIRCLE, VANASREE, KOLLAM. BY SRI.RENJITH THAMPAN,SPL.GP FOR FOREST BY SRI.H.SANIL KUMAR – GOVERNMENT PLEADER RESPONDENT(S): RESPONDENT ------------------------- T.M. SUKUMARAN, EX-SERVICEMEN, KALAYANTHOTTIL, ANGAMOZHY, CHITTAR, SEETHATHODE VILLAGE, PATHANAMTHITTA. ADV. SRI.V.PHILIP MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/03/2010, THE COURT ON 09/07/2010 DELIVERED THE FOLLOWING: WP(C).NO. 17144 OF 2008 :: :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE ORDER OF THE CONSERVATOR OF FORESTS, KOLLAM DATED 26.4.2004. EXT.P2: TRUE COPY OF THE JUDGMNET OF THE DISTRICT COURT, PATHANAMTHITTA IN CMA NO.32/2004. EXT.P3: TRUE COPY OF PATTA ISSUED UNDER RULE 9(2) OF THE KERALA LAND ASSIGNMENT RULES. EXT.P4: TRUE COPY OF THE LETTER DT. 12.10.1994 ISSUED BY THE VILLAGE OFFICER, CHITTAR. EXT.P5: TRUE COPY OF THE GOVT. ORDER NO.GO(MS) 36/93/FOREST DT. 19.5.1993. EXT.P6: TRUE COPY OF THE STATEMENT FILED BY NALINI, D/O.KALYANIAMMA BEFORE THE FOREST RANGE OFFICER. EXT.P7: TRUE COPY OF THE STATEMENT FILED BY SAMUEL, S/O.ABRAHAM BEFORE THE FOREST RANGE OFFICER. EXT.P8: TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.10113/2008. RESPONDENTS' EXHIBITS: NIL //true copy// P.S. To Judge SK/- S.S.SATHEESACHANDRAN, J. ----------------------------------------- W.P.(C).No.17144 of 2008 ----------------------------------------- Dated this the 9th day of July, 2010 JUDGMENT The Conservator of Forests, Southern Circle, Kollam has filed this writ petition challenging the judgment dated 20.3.2007 in C.M.A.No.32/04 passed by the learned Additional District Judge, Pathanamthitta, setting aside the confiscation order over a mini lorry, allegedly, involved in transiting of timber, under Section 61A of the Kerala Forest Act {for short “the Act”}. 2. The respondent is the owner cum driver of the vehicle involved in the confiscation proceedings. 3. A forest patrolling party headed by the Deputy Ranger, during the course of night patrolling on 19.5.2004, intercepted a mini lorry loaded with anjili logs and planks, passing through Angamaly-Chittar road, which was driven by the respondent. Explanation W.P.(C).No.17144 of 2008 :: 2 :: offered by the respondent and also the passenger in the cabin, who claimed to be owner of the logs carried, not being found satisfactory and as there was reasonable ground to suspect the commission of a forest offence in the transportation of logs and planks, the vehicle with the goods was seized into custody. Further investigation, after seizure, on registration of a case involving forest offence, disclosed that the logs carried in the vehicle were cut and removed from the land having the status of reserve forest, but assigned to persons under the food production scheme, and thus falling within 'food production Area', belonging to the Government, from which prohibition from cutting anjili trees was then in force. After investigation, being satisfied that the seized anjili logs and also the planks carried in the vehicle belonged to the Government and the vehicle was used for illicit transportation of timber a report was filed before the authorised officer. On such W.P.(C).No.17144 of 2008 :: 3 :: report, the authorised officer initiated proceedings under Section 61A of the Act and issued notice to the respondent, the owner of the vehicle, to show cause why the vehicle should not be confiscated. The respondent and the witnesses produced by him were examined in such enquiry and their statements were recorded. The authorised officer, on the basis of the materials tendered, concluded that the vehicle was involved in the illicit transportation of timber and that such illicit transportation was with the knowledge of the owner - the respondent. The mini lorry was thereupon ordered to be confiscated. The order was subject to a review by the Conservator of Forests. Confiscation order confirmed in review by the Conservator of forests was challenged by the respondent by filing an appeal as C.M.A.No.65/95 before the District Court, Pathanamthitta. Challenge canvassed by the respondent-owner, the appellant in that appeal, that he was not given an opportunity of hearing W.P.(C).No.17144 of 2008 :: 4 :: by the Conservator of Forests, when review over the confiscation order was proceeded with, appealed to the learned District Judge, and, in that view of the matter, the confiscation order was set aside and the case remitted for fresh consideration. Challenge against the remand order by way of a writ petition before this court by the Department was unsuccessful. 4. After remand and further enquiry, the authorised officer again passed an order directing confiscation of the vehicle concluding that the vehicle had been used for illicit transportation of timber with the knowledge of the respondent, owner of the vehicle. The respondent challenged that confiscation order filing an appeal, C.M.A.No.32/04 before the Additional District Judge, Pathanamthitta. The appeal was allowed holding that the confiscation order passed in the case is unsustainable and the vehicle was ordered to be released to the respondent. Propriety, legality and correctness of that W.P.(C).No.17144 of 2008 :: 5 :: judgment is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 5. The learned Special Government Pleader assailed the impugned judgment contending that the very approach taken by the learned District Judge in examining the merit of the confiscation order passed under Section 61A of the Act was erroneous and, in fact, such exercise was made overlooking the mandatory statutory prescription under sub-section (2) of Section 61B of the Act casting the burden on the owner of the vehicle to prove to the satisfaction of the authorised officer that the vehicle had been used for carrying the timber without his knowledge or connivance, and that he had taken all necessary precautions against the use of the vehicle for such illegal purpose. Pointing out the observation made in the judgment that on the materials it was impossible 'to conclude that the appellant was W.P.(C).No.17144 of 2008 :: 6 :: transporting forest produce in his vehicle fully knowing that it was forest produce', the learned Special Government Pleader submitted that it was not proof of absence of knowledge alone that was contemplated to avoid a confiscation when the vehicle is proved to have been involved in the illicit transportation of a forest produce, but satisfaction that he had discharged his burden that such use was without his knowledge and also that he had taken reasonable care from the vehicle being used for such illegal purpose. The trees were cut and removed from patta land was another reason, according to the Government Pleader, which prompted the court below to hold that the owner could not be conclusively posted with the knowledge that the timber transported in the vehicle belonged to the Government. The burden was on the owner, and not on the authorised officer, to show cause under sub-section (2) of Section 61B of the Act; and, in the present case, according to the Government Pleader, no W.P.(C).No.17144 of 2008 :: 7 :: material or any circumstance was presented discharging the onus cast upon him to avoid the confiscation. Non-production of the timber seized before the Magistrate Court, immediately on such seizure was taken exception by the court below, to hold that there was non- compliance of the provisions of Section 52 of the Act, and hence the confiscation order is unsustainable. The decision of this court in Ancy Philip v. State of Kerala {2006 (1) KLT 699} relied by the court below to hold so, it is submitted, had been reversed in State of Kerala v. Ancy Philip (2008 (3) KLT 477) by the Apex Court. No notification was produced to show that the logs transported were cut from trees situate in a Reserved Forest area, which was yet another reason appealing to the learned District Judge to set aside the confiscation order, is also attacked by the learned Special Government Pleader submitting that in the proved facts of the case where admittedly the logs and planks had been cut and removed from W.P.(C).No.17144 of 2008 :: 8 :: trees in forest area over which patta was issued in favour of the occupants, but with restriction over cutting and removal of trees, which included anjili trees, the absence of production of notification that the logs were cut and removed from a land situate in a 'forest' is not at all material. So much so, according to the Government Pleader, the impugned judgment interfering with the order of confiscation passed by the authorised officer is liable to be set aside and the order of confiscation to be restored. 6. Per contra, the learned counsel appearing for the respondent, stressing upon that the anjili trees were cut and removed from lands over which patta had been issued and that the Act does not define what is a 'forest', contended that this was a case in which no proceeding under Section 61 A of the Act for transporting logs and planks cut and removed from trees in such patta land was permissible under law. Adverting to the provisions of the W.P.(C).No.17144 of 2008 :: 9 :: Forest Produce Transit Rules, 1975, it was contended that transporting timber from trees cut and removed from food production area by itself would not be sufficient to invoke the provisions for confiscation under the Act, even where there was infringement of the above Rules. The learned counsel relied on Sukumaran and ors. v. State of Kerala {2010 (1) KHC 508} in which the provisions of the Tree Growth for Non-Forest Areas Act, 2005 in relation to proceedings for confiscation for violation of such Rules were involved, to contend that this court has held that no vehicle can be confiscated for violating the provisions of that Act. Similar is the situation in the present case also where logs transported in the vehicle were cut and removed from a patta land, though it was done flouting the restriction imposed in the cutting of anjili trees from such property, according to the counsel. Reliance is also placed on the observations made in Nature Lovers Movement v. State of W.P.(C).No.17144 of 2008 :: 10 :: Kerala {[2009] 9 SCC 373} to canvass that once the Government had taken a policy decision to regularise unauthorised occupation/ encroachment of forest land issuing pattas in favour of such occupants, it is inappropriate to treat such occupied areas as forest and apply the provisions of the Forest Act, when the land has long since ceased to be a 'forest' in the strict sense, as it is to be understood, according to the counsel. 7. After careful consideration of the rival submissions made by the counsel on both sides with reference to the impugned judgment, confiscation order over the vehicle, and also the materials leading to the confiscation of the vehicle, I find that none of the reasons formulated by the District Judge to quash the confiscation order is sustainable under law or facts. Before adverting to that aspect, it is necessary to examine the challenge raised by the respondent – owner of the vehicle - impeaching the confiscation proceedings with W.P.(C).No.17144 of 2008 :: 11 :: reference to the provisions of the Kerala Forest Produce Transit Rules and the decision rendered under the Kerala Promotion of Tree Growth for Non-forest Areas Act, 2005, {Sukumaran and ors. v. State of Kerala {2010 (1) KHC 508}, setting up a case that the word 'forest' is not defined under the Forest Act and so much so, any proceeding for confiscation under Section 61 A of the Act has to be appreciated and looked into with the definition of 'forest' in the Rules referred to above, and to sustain such a proceeding, a notification under Section 19 of the Forest Act that the logs and planks carried in the vehicle were from the trees cut and removed from a notified Reserved Forest, producing the notification thereof. 8. First and foremost, the respondent, owner of the vehicle, had challenged the confiscation order passed earlier, by way of an appeal, on the ground that the review of the confiscation order by the Conservator of W.P.(C).No.17144 of 2008 :: 12 :: Forests was made without giving him notice and thus, there was failure of compliance of the natural justice, and, the previous order of confiscation accepting his challenge, was set aside remitting the case for reconsideration. Challenge now posed as to lack jurisdiction to pursue the confiscation proceedings on the premise that such proceedings are applicable only in relation to trees cut and removed from notified Reserved Forest, as seen from the records, was never raised, nor even adverted to earlier, not even when a challenge was raised against the confiscation order previously passed in the case. Of course, the lack of jurisdiction of a court or an authority to proceed with a matter which goes to the root of such proceedings can be raised at any stage, even at the stage of execution of such order. In that view of the matter, it may be open to the respondent to contend that there was inherent lack of jurisdiction for the authorised officer to initiate confiscation W.P.(C).No.17144 of 2008 :: 13 :: proceedings over the vehicle where the logs carried in the vehicle were not cut and removed from a Reserved Forest provided a proceeding under Section 61A of the Act is applicable only in such cases. 9. The Kerala Forest Act has not defined 'forest' is not the crucial aspect to be looked into in examining the scope and ambit of confiscation proceedings contemplated under Sections 61A to 61D of the Act. Sub-section (1) of Section 61A of the Act reads thus: 61A (1) Confiscation by Forest Officers in certain cases:- Notwithstanding anything contained in the foregoing provisions of this chapter, 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 52 shall, without any unreasonable delay, produce it, together with all tools, ropes, chains boats, vehicles and cattle used in committing such offence, before an officer authorised by the Government in this behalf by notification in the Gazette, not being below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorised officer). W.P.(C).No.17144 of 2008 :: 14 :: The authority conferred on the Forest Officer to invoke confiscation proceedings under sub- section (1) of Section 61 of the Act is over a 'forest offence' detected and a seizure made under Section 52 of the Act. Where he has reason to believe that a 'forest offence' had been committed in respect of timber, charcoal, firewood or ivory, which is the property of the Government, the Act empowers him to commence confiscation proceedings. Such forest offence need not be committed in a forest notified under Section 19 of the Act, but need be only in respect of a 'timber, charcoal, firewood or ivory', which is the property of the Government. 10. Section 52 which deals with seizure of property involved in forest offences, and thus render them liable to confiscation clearly spells out, such seizure could be made when a forest offence had been committed in respect of any timber, tree or other forest produce. The word 'timber', over and above the words 'or W.P.(C).No.17144 of 2008 :: 15 :: other forest produce' in Section 52 of the Act has much significance. Section 2(f) of the Act defines what is a 'forest produce' which reads thus: “forest produce” includes -- (I) the following whether found in, or brought from, a forest or not, that is to say, -- timber, charcoal, wood-oil, gum, resin, natural varnish, bark, lac, fibres and roots of sandalwood and rosewood; and (ii) the following when found in, or brought from, a forest, that is to say, -- (a) trees and leaves, flowers and fruits, and all other parts or produce not herein before mentioned, or trees; (b) plants not being trees (including grass, creepers, reeds and moss) and all parts or produce of such plants; and (c) silk cocoons, honey and wax; (d) peat, surface soil, rock and minerals (including limestone, laterite, mineral oils and all products of mines or quarries).” W.P.(C).No.17144 of 2008 :: 16 :: Section 2(k) defines timber separately thus: “Timber” includes trees when they have fallen or have been felled, and all wood, whether cut up or fashioned, or hollowed out for any purpose or not;”. Tree is also separately defined under Section 2 (l) of the Act thus: “Tree” includes palms, bamboos, stumps, brush-wood and canes.” It has to be noted that a forest offence is not confined to a forest produce alone, but on the contrary it includes an offence punishable under the Act or any Rule made thereunder. That is made clear by the definition of 'forest offence' under Section (e) of the Act, which reads thus: “forest offence” means an offence punishable under this Act or any rule made thereunder;” So much so, forest offences even in non-forest areas also fall within its sweep when an act or omission is punishable under the Act or any Rule made thereof is committed. A cursory perusal of the Forest Rules framed under the W.P.(C).No.17144 of 2008 :: 17 :: Act and also the Kerala Prohibition of Trees Act, Kerala Preservation of Trees and Regulation of Cultivation in Hill Areas Rules, 1983, the Kerala Restriction on Cutting and Destruction of Valuable Trees Act, the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 etc. and the penal provisions covered by such Acts and Rules clearly demonstrate that 'forest offence' is inclusive and takes care of offences committed even in non-forest areas, but of course, subject to the provisions of the Kerala Forest Act and the Rules. When viewed in that perspective, it is to be noticed that Section 52 of the Act, dealing with seizure of property in relation to a forest offence is not confined to 'forest produce' as defined in Section 2(f) of the Act, but applicable in the case of 'timber' or 'trees' in respect of which a forest offence is believed to have been committed. It is an undisputed fact that the logs carried in the vehicle were cut and removed from an anjili tree situate in a land W.P.(C).No.17144 of 2008 :: 18 :: presumably a forest, but assigned and patta issued with restriction in cutting and removing of such trees. As on the date of cutting and removal, the exemption granted by the Government earlier in cutting of anjili trees in such properties stood withdrawn and thus, a restriction over the cutting and removal of such trees was in force is not under challenge. Such trees belonged to the Government and the persons in whose favour assignment had been made over such land had no right to cut and remove such trees. The vehicle was seized when it was transporting timber cut and removed from anjili trees which belonged to the Government. Essentially where the timber carried in the vehicle was cut and removed from the trees belonging to the Government, the land over which the provisions of the Act and the Rules are applicable, the question of a notification showing such land as a Reserved Forest, which may not be so after assignment of such land made in favour of the occupants, is irrelevant W.P.(C).No.17144 of 2008 :: 19 :: and it does not have any bearing on the legality, propriety and correctness of the confiscation proceedings. There is absolutely no merit in the challenges canvassed by the counsel questioning the empowerment of the authorised officer to commence confiscation proceedings, in the present case, under Section 61A of the Act. 11. It is fallacious to contend that the Act applies only and also over areas which have been notified as Reserved Forest. The Act is a codification of the law relating to the protection and management of forests in Kerala, which, inter alia, provides for protection of land at the disposal of the Government, not included in Reserved Forest as well. That is all the more clear by the provisions under Chapter III of the Act which empowers the Government to make Rules to regulate the use of the pasturage or of the natural produce of any land at the disposal of the Government and not included in a Reserved Forest. Provisions made W.P.(C).No.17144 of 2008 :: 20 :: in the Act in Chapters IV, V and VI clearly demonstrate the application of the Act is not confined to forests declared as Reserved Forest under Section 19 of the Act, but in respect of land belonging to the Government inclusive of waste land, and so much so, the challenge raised that the timber involved in the case had been cut and removed from trees from the lands assigned to occupants, previously forest, but not now continuing as Reserved Forest has absolutely no merit at all where the notification issued by the Government prevented cutting and removal of anjili trees from such lands, the timber of which, admittedly, after removal, was carried in the vehicle of the respondent. There is no merit in the submission of the counsel that the word 'timber' used in Section 52 of the Act, over and above other forest produce, has no significance. On the contrary, it is clearly indicative that it has been consciously done, to include such timber which does not come under 'forest produce' as W.P.(C).No.17144 of 2008 :: 21 :: defined in the Act. Where a forest offence is believed to have been committed seizure of such timber with the tools, ropes, chains boats, vehicles and cattle etc., is authorised under the Act. Though the definition of 'forest produce' under Section 2(f) takes within its sweep 'timber', it is to be noticed, all the items covered by that definition must have a nexus with the forest as having been found in or brought from a forest. The definition of 'land at the disposal of the Government', 'timber' and 'tree' separately with that of forest offence as under Section 2 with other provisions under Chapters IV, V and VI also indicate beyond the shadow of doubt that 'timber' separately defined under Section 2 of the Act cannot be given a restricted meaning as confined to those found in or brought from forest, but to be seen with reference to the land at the disposal of the Government. 12. The argument of the learned counsel that the word 'timber' used in relation to the W.P.(C).No.17144 of 2008 :: 22 :: commission of a forest offence under Section 52 of the Forest Act, dealing with seizure of the property liable to confiscation has no significance, as the definition of 'forest produce' under the Act takes in 'timber' also has no merit at all. It was contended that the use of the word 'timber' in Section 52, along with 'or other forest product' with respect to the commission of the forest offence is superfluous and should not be given any value. A statute has to be interpreted as it is and the court cannot amend and by construction make up deficiencies which are not taken care of by the provisions. The court cannot re-frame the legislation for the reason that it has no power to legislate. It is too much to contend that the word 'timber' in relation to forest offence has been used by mistake by the legislature over and above the use of the words 'forest produce' in Section 52 of the Act which empowers the forest officials and police officials to seize the property involved in W.P.(C).No.17144 of 2008 :: 23 :: forest offence which are liable to be confiscated. As discussed earlier, the word 'timber', which has been used in Section 2(k) has been consciously used in Section 52 to take care of 'timber', not covered under 'forest produce' also, but which belong to Government, to which the Act and Rules are applicable, when a forest offence is committed in relation to such 'timber'.