IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH JANUARY 2011 / 30TH POUSHA 1932 WP(C).No. 29041 of 2009(Q) ---------------------------------- PETITIONER(S): ------------------- JOJY THOMAS, S/O.P.A.THOMAS, MUTHUMARATHIL HOUSE, ELANTHOOR EAST P.O. VARIYAPURAM, PATHANAMTHITTA. BY ADVS. SRI.V.K.SUNIL SMT.NIMA JACOB RESPONDENT(S): --------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF FOREST & WILD LIFE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY CONSERVATOR OF FOREST, KONNI DIVISION, VADASSERIKKARA. 3. THE DISTRICT FOREST OFFICER, PATHANAMTHITTA. 4. THE DEPUTY RANGER, GURUNATHANMANNU FOREST STATION, PATHANAMTHITTA. R1-4 BY GOVT. PLEADER SRI.P.M.PAULOSE, FOREST THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.29041 of 2009 --------------------------------------- Dated this 20th day of January, 2011 JUDGMENT Petitioner, claiming to be the title holder in possession of a plot of land which according to him is covered by Ext.P2, sale deed seeks to quash Ext.P1, Form 1 report submitted by the Deputy Range Officer under Sec.52 of the Kerala Forest Act (for short, "the Act”). Case of petitioner is that for the purpose of proper enjoyment of the property by replanting rubber plants he cut down rubber trees and certain other trees standing in the said schedule property which according to him is within his right and entitlement as the absolute owner in possession of the property. The timber were seized by the Deputy Range Officer who submitted Ext.P1, report before the learned Judicial First Class Magistrate, Pathanamthitta. It is contended by the petitioner that Ext.P1 is bad in law in that it does not disclose any of offence committed by the petitioner. According to the petitioner in the absence of any offence committed by him, forest officials had no authority to seize the timber under Sec.52 of the Act. Petitioner therefore wanted Ext.P1, report to be quashed and respondents be directed to release the timber to him. W.P(C).No.29041 of 2009 -: 2 :- 2. I have heard learned counsel for petitioner and the learned Special Government Pleader for forest. Learned counsel for petitioner contends that in so far as no offence is disclosed by Ext.P1, report the seizure is illegal. Learned Special Government Pleader contended that the land in question is part of reserve forest as notified by the Konni reserve forest notification dated 27.01.1897 (Annexure-R3(a)) and as per the policy of the then Government, patta were issued in favour of occupants of the lands for cultivation but, such lands are not so far disreserved and hence continue to be part of reserve forest with the only right for occupants to enjoy the property by effecting cultivation. According to learned Special Government Pleader such occupants have no right over the trees standing in the property and have no right to cut and remove the same. It is pointed out that by virtue of power vested with the Government under Sec.76 of the Act, Rules are made in the matter and the Rule governing the matter is Kerala Forest (Preservation, Reproduction and Disposal of Trees and Timber belonging to Government But Grown On Lands In The Occupation Of Private Persons) Rules, 1975. According to the learned Special Government Pleader, Sec.2(e) of the Act defines “forest offence” as meaning an offence W.P(C).No.29041 of 2009 -: 3 :- punishable under the Act and any rules made thereunder. It is pointed out that the act of petitioner in cutting down trees from the patta land which is part of the reserve forest as it is not disreserved amounted to offence punishable under Sec.27(1)(e) (iii) of the Act though not it is not so specifically stated in Ext.P1, seizure report. It is argued by the learned Special Government Pleader that the matter is under investigation. Learned Special Government Pleader has also placed reliance on the decision of the Supreme Court in T. N Godavarman Thirumulkpad Vs. Union of India and Ors. (AIR 1997 SC 1228) and the observations in paragraph 4. 3. It is true that Ext.P1, Form-I report does not mention what exactly is the offence if any committed. In column No.1 dealing with nature of the offence, there is only reference to the Rule referred to above under Sec.76 of the Act. It is stated in Ext.P1 that petitioner committed an offence. But I must bear in mind that Ext.P1 is not a final report after investigation it is only a preliminary forest offence seizure report. 4. I am not persuaded to think that merely because the exact provision of law allegedly violated is not mentioned in Ext.P1, that report has to be set aside particularly as the W.P(C).No.29041 of 2009 -: 4 :- investigation is on. Petitioner has to await the result of investigation. If the final report as may be submitted by the officer concerned does not disclose any offence as petitioner contends, it may be open to him to challenge the seizure report as provided under law. I do not therefore find reason to quash Ext.P1, at this stage. 5. Learned counsel submitted that since the timber has not been removed from the patta land of petitioner, it causes much difficulty. Learned counsel referred me to the order passed by this court on April 7, 2007 where submission of the learned Special Government Pleader is that the forest official will be directed to remove the trees to a convenient place is recorded. It is pointed out by learned counsel for petitioner so far, the said undertaking has not been complied. Learned Special Government Pleader submitted that in case timber has not so far been removed, the same will be removed within two weeks from the date of receipt of a copy of this judgment. That submission is recorded. Forest officials shall do so. 6. It is then contended by learned counsel for petitioner that since the fact of cutting of trees is not disputed by the petitioner, it does not require much time for investigation, what W.P(C).No.29041 of 2009 -: 5 :- is to be investigated is only whether the land is part of reserve forest or not and hence the forest officials may be directed to complete investigation and submit final report within a time limit to be fixed by this court. I do not think that it is proper or justifiable for this court to fix a time limit for completion of investigation and submission of final report but, having regard to the difficulties expressed by petitioner it is only just and proper that the forest officials concerned, expedited investigation and further proceedings in the matter. They are directed to do so. 7. With respect to the timber in question (which will be removed by the forest officials from the patta land as above stated) the department shall initiate necessary action for its disposal as provided under law as early as possible. This petition is closed with the directions made above and without prejudice to the right of petitioner to challenge the final report that may be submitted by the forest officials on completion of investigation. (THOMAS P JOSEPH, JUDGE) Sbna/-