IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 OP.No. 25379 of 2001(U) ---------------------------------- PETITIONER(S): ----------------------- M.T.CHINNAMMA, D/O. THOMMAN, AGED 65, MATTAMANA HOUSE, PANAMKUZHY KARA, KOMBANAD VILLAGE. BY ADV. MR.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP.BY DISTRICT COLLECTOR, ERNAKULAM CIVIL STATION. 2. TAHSILDAR, TALUK OFFICE, KUNNATHUNADU, PERUMBAVOOR. 3. TAHSILDAR, REVENUE RECOVERY, TALUK OFFICE, ALUVA 4. VILLAGE OFFICER, KOMBANAD VILLAGE OFFICE. GOVERNMENT PLEADER MR.T.K.VIPIN DAS THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 17/06/2009, ALONG WITH OP NO. 25528 OF 2001 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. 41379/2001 IN OP. NO.25379/2001 CLOSED 17.06.2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DT. 22.3.97 IN L.D. 1/94 OF THE 2ND RESPONDENT. P2:- COPY OF THE ORDER IN THE APPEAL NO.K.DIS 3030/97/A2 DT. 11.4.2000. P3:- COPY OF THE ORDER IN K.DIS. 10593/2001/L5 DT. 6.7.01 PASSED BY THE IST RESPONDENT. P4:- COPY OF THE CIRCULAR NO.G.O.(MS) 1240/75/RD DT. 22.9.75 OF THE GOVERNMENT OF KERALA. P5:- COPY OF THE IN OP. 9545/98 OF THE HONOURABLE HIGH COURT OF KERALA. P6:- COPY OF THE DEMAND NOTICE NO.L.C.1/94-C2 DT. 12.2.01 ISSUED BY THE 2ND RESPONDENT. TRUE COPY P.A. TO JUDGE TSS V.K.MOHANAN, J. --------------------------------------------- O.P.Nos. 25379 & 25528 of 2001 --------------------------------------------- Dated this the 17th day of June, 2009 J U D G M E N T Petitioners in these writ petitions are sister and brother respectively and they are challenging the orders issued by the second respondent-Tahsildar under Section 10 of the Land Conservancy Act,1957 (hereinafter referred to as 'the Act') with respect to the properties possessed and owned by them. As the issue raised in these two writ petitions is identical, both these writ petitions are heard together and being disposed of by this common order. 2. Smt.M.T.Chinnamma, the petitioner in O.P.No.25379 of 2001 is the owner of an extent of 2 acres 80 cents of property in Sy.No.459 of Kombanad Village, Kunnathunadu Taluk which was a Government puramboke land assigned in favour of the petitioner in the year 1964 as per Patta No.PF 420/64. At the time of assignment, there were 17 small trees in the property i.e. 1 teak, 11 teak sapplings, 3 rose wood and 2 sandal wood. Those trees were reserved in favour of the Government at the time of assignment. Similarly, the petitioner in O.P.No.25528 of 2001 - Sri.James Thomas was O.P.Nos.25379/2001 & 25528/2001 :-2-: in possession of 2 acres 91 cents of properties in Sy.No.459/1/41 of Kombanad Village. Originally, the land was assigned in favour of the father of the petitioner in the year 1964, vide Patta No.PF 419/64. In the said property also, there were 15 very small trees, i.e., 4 teaks, 2 teak sapplings and 9 rose wood sapplings. 3. According to the petitioners, the second respondent registered a case under the provisions of the Land Conservancy Act against them on the allegation that the petitioners, in violation of the conditions of the assignment, cut and removed the trees on the patta land which were reserved in favour of the Government and therefore, finally the said Officer issued proceedings under Section 10 of the said Act quantifying the damages in terms of Section 10 of the said Act. Against the order issued by the Tahsildar under Section 10 of the Act, the petitioners preferred appeals before the Revenue Divisional Officer which were dismissed, and subsequently against the said order, they preferred revision petitions before the District Collector and the District Collector also dismissed their revision petitions. In the above circumstances, they have approached this Court by filing these writ petitions. O.P.Nos.25379/2001 & 25528/2001 :-3-: 4. In O.P.No.25379 of 2001, the second respondent has filed a detailed counter affidavit stating that during March, 1992, the Pattadar cut and removed all the reserved trees and accordingly, a case was registered under the Land Conservancy Act. After the enquiry, it was found that the pattadar has cut and removed 17 reserved trees worth Rs.1,57,302/- and thus, he was ordered to remit Rs.3,14,904/- as penalty. It is stated that out of the said amount, Rs.300/- is fixed as fine and Rs.3,14,604/- was fixed as double amount of the timber cost as penalty. It is also stated in the counter affidavit that both appellate and revisional authorities confirmed the original order passed by the second respondent. According to the second respondent, the assignment was made during the year 1964 and the reserved trees were stolen during March 1992 and therefore, the prevailing market rate during the year 1992 has to be taken for fixing the penalty to be realised from the patta and thus, original order was issued by the second respondent. Thus, according to the respondents, no interference is called for because the petitioners cut and removed valuable trees which were reserved in favour of the Government and were standing in the property of the O.P.Nos.25379/2001 & 25528/2001 :-4-: petitioners. It is also submitted by the respondents that the petitioners miserably failed to inform the authorities regarding the cut and removal of the trees for the purpose of plantation. As the petitioners failed to timely inform the Department regarding the alleged destruction of trees due to natural calamities etc., they cannot evade the liability. 5. I have heard learned counsel for the petitioners as well as the learned Government Pleader and also perused the materials on record. 6. Learned Government Pleader made available to me the records of both the cases. Section 10 of the Land Conservancy Act, 1957 reads as follows:- “10. Penalty for destruction and appropriation of trees.--Any person who destroys or appropriates any useful tree belonging to the Government shall be liable for damages not exceeding three times the value of the tree as adjudged by the Collector and shall also be liable on conviction by a Magistrate to be punished with imprisonment for a term extending to six months or with fine not exceeding five hundred rupees, or with both.” On a reading of Section 10 of the above Act, it can be seen that a person against whom proceedings are initiated under the O.P.Nos.25379/2001 & 25528/2001 :-5-: provisions of the Act, especially Section 10, can be ordered to pay damages only if it is satisfied that he had destroyed or appropriated any useful tree belonging to the Government. In the present case, there is no material to show that the trees, which are alleged to have cut and removed by the petitioners, were useful trees. Even, according to the second respondent, they came to know regarding the planting of rubber trees in the property only when they conducted an inspection during the year 1992. So, that is the year taken for fixing the liability in terms of Section 10 of the Act. In the absence of any concrete evidence or materials regarding the actual period or date of cutting and removal of the trees or some other materials to come into a conclusion that at the time of cutting and removal of trees, the same were useful, no such penalty can be realised. After the assignment of the land during the year 1964, no periodical inspection was conducted by the authorities concerned so as to ascertain that the trees reserved for the Government are maintained by the petitioner or the holders of patta properly. Even if the land was assigned to the petitioners, the trees, which stood at the time of the assignment, are the properties of the O.P.Nos.25379/2001 & 25528/2001 :-6-: Government and it is for the authorities to see that the same are conserved and protected so as to save the interest of the Government. If they were having such an approach, to achieve the above aim, periodical inspection was to be conducted. Destruction or removal of the trees would have been noticed at appropriate time. 7. It is equally important to note that a duty is cast upon the petitioners or the patta holders to bring to the notice of the local revenue authorities about the reserved trees which were ruined due to climatic calamities or in some other way. That was also not done. Admittedly, a portion of the land, where reserved trees stood, has now been converted for the purpose of rubber plantation and at least at the time of beginning the rubber crops, they could have approached the revenue authorities by giving timely intimation. From the above discussion, it is crystal clear that there is no material especially with respect to the date on which the trees were destroyed or cut and removed and the age of such trees at that point of time and also other details such as girth, width, height etc. In the absence of such details, it cannot be safely concluded that those trees were useful or not as O.P.Nos.25379/2001 & 25528/2001 :-7-: contemplated in the above section. It is equally important to note that those lands were assigned during the year 1964 and therefore, the trees, which were standing in those lands, would have grown up substantially and the petitioner have no case that at what stage, the trees were ruined. 8. In the light of the above facts and circumstances, I am of the view that there was default on the side of the petitioner as well as the respondents, and therefore, the damage can be limited to actual damage sustained by the Government and the additional value imposed as penalty can be avoided. In the result, the petitioners are directed to pay actual value of the trees fixed as compensation or damage by the second respondent, i.e., equal to half of the amount fixed in the order of the second respondent in this writ petition. It is made clear that the petitioners are also liable to pay the fine amount of Rs.300/- as fixed by the second respondent. The petitioners are further directed to make the payment within 45 days from today and the petitioners are entitled to get deduction of the amount that they have already deposited in terms of the orders passed by this Court. O.P.Nos.25379/2001 & 25528/2001 :-8-: The writ petitions are disposed of as above. V.K.Mohanan, Judge MBS/ O.P.Nos.25379/2001 & 25528/2001 :-9-: V.K.MOHANAN, J. -------------------------------------------- O.P.Nos.25379/2001 & 25528/2001 -------------------------------------------- J U D G M E N T DATED: 17-6-2009 O.P.Nos.25379/2001 & 25528/2001 :-10-: