IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.04.2009 C O R A M THE HONOURABLE MR. JUSTICE K. CHANDRU W.P.Nos.14416 to 14419 of 1995 1. MSP Rajes (deceased) 2. Vijayann Rajesh S/o.M.S.P.Rajes, Cauvery Peak Post, Yercaud. .. Petitioner in W.P.Nos. (P2 substituted in the place of P1 14416 to 14418/95 since deceased as per order of court dated 19.2.2002 in WPMP Nos.38878, 38879, 38880 of 2001) M.S.P.Rajes (deceased) .. Petitioner in W.P.No. 14419 of 1995 -vs- 1. State of Tamil Nadu, rep.by its Secretary to Government, Forest Department, Chennai-9. 2. Sessions Judge, Salem 7, (appellate Authority under section 49-D of the Tamil Nadu Forest Act, 1882 (Act V of 1882). 3. Deputy Conservator of Forests, Salem Division, Salem. 4. District Forest Officer, Salem. .. Respondents in all the writ petitions PRAYER in WP.Nos.14416 to 14418 of 1995 : Petitions filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records relating to C.V.Nos.21/93, 22/93, 23/93 respectively dated 05.8.1993 passed by the third respondent herein and confirmed by the second respondent in C.A.Nos.102 of 1993, 103 of 1993, 104 of 1993 respectively dated 23.9.1994 and quash the same and directing the respondents herein to take and possess the entire sandalwood recovered from the petitioner's patta land as per Magazars dated https://hcservices.ecourts.gov.in/hcservices/ 05.8.1993, weighing 55,643.500 kg. ; 10,870.500 kg. ; 14,689.500 kg.; approximately to the value of Rs.1,24,08.500/- ; Rs.24,24,121/- ; Rs.32,75.750/- respectively in respect of Cauvery Peak Estate as on 05.8.1993 and pay the same as Royalty to the petitioner with interest at the rate of 12% per annum. (Prayer amended as per order dated 28.7.2003 in WPMP.No.35867, 35868 of 2002, 35869 of 2002). PRAYER in WP.No.14419 of 1995 : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorari calling for the records relating to C.V.No.24/93/E2, dated 05.8.1993 passed by the third respondent herein and confirmed by the second respondent in C.A.No.102 to 105 of 1993 on 23.9.1994 and quash the same. For petitioner : Mr.N.Jothi for Mr.P.R.Balasubramanian For respondents : Mr.S.Ramasamy, AAG assisted by Mr.S.N.Kirubanandam, Spl.GP (Forest) ***** COMMON ORDER Heard both sides and perused the records. 2.These four writ petitions were filed by the original petitioner seeking to challenge the order made by the learned Sessions Judge, Salem, dated 23.09.1994 in Criminal Appeal Nos.102 to 105 of 1993, confirming the order of the third respondent Deputy Conservator of Forest, Salem Division made in C.V.Nos.21 to 24 of 1993, confiscating the sandalwoods in possession of the petitioner. These writ petitions were admitted on 19.10.1995. 3.Pending the writ petitions, this court, by an order, dated 08.10.2003, gave the following direction to the Special Magistrate for Sandalwood cases: "3.In the light of the above, the learned Special Magistrate for Sandalwood Cases, Salem is directed to dispose of the calendar cases in C.C.Nos.70 to 73 of 1996 pending on his file within a maximum period of two months from the date of receipt of a copy of this order. Both the petitioner and the respondents are at liberty to mention for listing of the writ petitions after the disposal of the calendar cases as directed by this Court." 4.Pending the writ petitions, the petitioner filed miscellaneous petition in WMP No.22931 to 22934 of 1995, seeking for https://hcservices.ecourts.gov.in/hcservices/ a direction to the respondents to deposit the price of the sandalwood belonging to the petitioner into this court, which was confiscated by the third respondent. This court by a common order, dated 30.11.2000 dismissed those applications by stating that unless the petitioner succeeds in the main writ petitions, no such direction can be granted. 5.It must be stated that criminal cases were registered against the petitioner and the same were tried before the court of Special Magistrate for Sandalwood Cases, Salem in C.C.Nos.70 to 73 of 1996. The petitioner filed discharge petitions before the Trial Court. The Trial Court dismissed those discharge petitions, by a common order dated 03.2.1997. As against the order refusing to discharge, the petitioner filed revision before this court in criminal revision Nos.179 to 182 of 1997. This court, by a common order dated 24.1.2002, dismissed those revision petitions and a direction was given to put forth their contentions before the Trial Court during the trial. 6.But, for unexplained reasons, the trial could not be completed. Therefore, this court directed the expeditious disposal of the criminal cases. From time to time, the learned Judicial Magistrate, Salem sought for extension of time for completing the trial in C.C.Nos.70 to 73 of 1996 relating to Crime Nos.15 to 18 of 1993 and this court also granted such time extension. By a judgment, dated 28.02.2005, the original petitioner was found guilty of violating the Sandalwood Possession Rules and also Sections 36(A) to 36(E) of the Tamil Nadu Forest Act. He was imposed with a punishment of 2 years imprisonment with Rs.5000/- fine. Insofar as the impleaded writ petitioner is concerned, since he was not the owner of the estate at the relevant time, he was acquitted of the charges. 7.The petitioner preferred an appeal before the Additional District Judge, Salem in Crl.A.No.47/2005. The criminal appeal was allowed by the appellate court by a judgment, dated 30.05.2006. The appellate court found that the petitioner had no mala fide intention or mensrea to keep in possession of the sandalwood in violation of the Government Rules. With reference to the ownership of the property, the appellate court did not render any finding and also found that the charge sheet filed on 29.01.1996 was barred by limitation. 8.The original petitioner also died on 25.12.2000 and his son had come on record stating that the confiscated sandalwood belong to the Cauvery Peak Estate as he was already 50% owner of the Estate and the 50% belong to the original petitioner in terms of the judgment and decree in O.S.No.663 of 1993. Since his father had died, the entire estate belong to him. https://hcservices.ecourts.gov.in/hcservices/ 9.On notice from this court, the fourth respondent, the District Forest Officer, Salem has filed a counter affidavit, dated Nil in all the four writ petitions. 10.The facts leading to the present case are as follows: The petitioner sent a petition dated 23.08.1988 to the fourth respondent to arrange to lift the dead and wind fallen sandalwood trees from his estate against payment. He furnished the measurement of 49 wind fallen and 198 dead sandalwood trees in Form 4 prescribed under the Tamil Nadu Sandalwood Transit Rules, 1963. The then Forest Ranger of Yercaud Range requested him to produce the Chitta, Adungal and sketch of the survey number so as to ascertain the ownership of those sandalwood as contemplated under the relevant rules. The original petitioner was also summoned on many occasions by the Ranger to be present for physical verification of the sandalwood trees. Since no reply was forthcoming, the Ranger requested the Tahsildar to confirm the ownership of the sandalwood trees, the date of assignment of the land by the Government and title over the sandalwood trees. 11.Since they could not get any reply, on 17.08.1991, the Forester of the Yercaud Range went to the Estate and found only 119 sandalwood cut trees. He prepared the sandalwood extraction and conversion Form and submitted a report to the fourth respondent. 12.It is stated that as per G.O.Ms.No.120, Forest and Treasuries Department, dated 17.02.1979, on receipt of the verification report of the ownership of land from the Revenue Authority, the District Forest Officer should again satisfy whether the Government had any interest in the trees before granting permit for extraction. It was also stated that in case of pattas assigned after 1924 in respect of sandalwood bearing areas, the Government is the absolute owner of the sandalwood. The petitioner, by a letter dated 5.3.1992, furnished the chitta, adungal and sketch of the survey land for further action. While waiting for the reply from the Tahsildar, regarding the information over the title of the Government over the sandalwood trees, the Assistant Conservator of Forest was directed by the fourth respondent to check the sandalwood trees. The Forest Department also arrange to lift the sandalwood trees to their cleaning depot at Salem. 13.It was at that stage, the petitioner filed a suit in O.S.No.724 of 1992 praying for an injunction restraining the department or any other person from removing the sandalwood from the possession of the petitioner without following due procedure. He also prayed for an interim order in I.A.No.1303 of 1992. But, however, it transpires that no order was given by the learned Sub Judge, Salem especially after the counter was filed by the https://hcservices.ecourts.gov.in/hcservices/ respondents. Subsequently, the suit was transferred to the Court of Principal District Munsif and was taken on file as O.S.No.861 of 1996. The suit was dismissed by the learned Principal District Munsif, Salem on 9.7.1996 as not pressed. 14.In the meanwhile, under the orders of the I.G. of Police, Forest Cell and the Superintendent of Police, Forest Cell, C.I.D., the officials of the Forest Cell seized 106.932 tonnes of sandalwood trees from the estate of the petitioner. The sandalwood was cut into pieces and were stored in 6 rooms in the godown of M.S.P. Plantations at Cauvery Peak and as well as at 2 quarters, cattle shed of the estate as well as in the office room of Vaithangadu estate of Semmanatham Village. The seized sandalwood consist of dead and green sandalwood pieces. A mahazar was prepared on 22.05.1993 and a criminal case was also registered in Crime No.15/1993, dated 22.05.1993 and on subsequent dates, three other criminal cases were also registered in Crime No.16 to 18 of 1993. The seizure of the sandalwoods were made in terms of Rule 3(1) of the Sandalwood Possession Rules, 1970 read with Sections 36-A and 36-E of the Tamil Nadu Forest Act. The sandalwoods so seized were taken to the additional Sandalwood depot, Salem. 15.The petitioner moved this court with Crl.O.P.Nos.13737 to 13740 of 1993 to quash the F.I.R. This Court, by a final order, dated 24.3.1994, dismissed those petitions with the following observations: "I am unable to say on the materials available, there is no conscious 'possession' so as to bring within Rule 3-A of the Rules. I am also unable to accept the contention that the sandalwood mentioned in some of the letters referred to above, are the same sandalwood found in the four places for which the First Information Reports were registered. They are all matters which require investigation. Hence, the investigation cannot be quashed at the threshold." 16.The third respondent issued a show cause notice to the petitioner under Section 49(b) of the Tamil Nadu Forest Act, asking the original petitioner as to why the sandalwood seized should not be confiscated to the Government in terms of Section 49-A of the Act. The petitioner sent a reply, dated 24.07.1993. It was stated by the petitioner that he had not committed any offence and the value of the sandalwood should be ascertained properly. It was also stated that the sandalwood were grown by him in his patta lands situated in S.No.43 of Northenchedue village and the sandalwood is not the property of the Government. On 05.08.1993, the third respondent passed an order, confiscating the 372 sandalwood billets and bundles seized by the Forest Cell, C.I.D. in favour of the Government under Section 49-A of the Tamil Nadu Forest Act. The confiscation order reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "On 25.5.93, Inspector of Police, Forest Cell, C.I.D., Salem raided M.S.P. Plantation quarters at Cauvery Peak, Yercaud and seized 372 sandalwood billets and bundles weighing 14689.500 Kg. stored in Cattle-shed in the Cauvery Peak, Estate, Yercaud. The seizures were made in the presence of V.Periasamy, Village Administrative Officer, Semmanatham and Thiru.P.Rajaran, Revenue Inspector, Vellakadai. The sandalwood was in the form of Green Cut trees consisting of sapwood and heartwood mixed billets, some dried sandalwood, in the form of billets, roots, chips, cleaned and uncleaned heartwood and sapwood. The case has been registered under Section 3(i) of Sandalwood Possession Rules, read with 36 A & E of the Tamil Nadu Forest Act, and the case was registered by Forest Cell, C.I.D., as per F.I.R. Dated 26.5.93. (Vide Forest Cell, C.I.D. Offence No.17/93). The M.S.P. Plantation Estate Owner, was found in illegal possession of sandalwood billets for which show cause notice was issued by Deputy Conservator of Forests, Salem on 19.7.93, which was acknowledgted by Thiru.M.S.P. Rajes, Estate Owner M.S.P. Plantation, Cauvery Peak, Yercaud on 21.7.93. The explanation from M.S.P. Rajes was received on 27.7.93. The explanation was perused in detail. It was found in explanation that the Estate Owner have written only that charges are baseless, unjust and illegal. But the Estate Owner has not produced any possession licence. Further his stock contains green felled sandal trees which is highly irregular, because it is schedule timber and further cutting of any green sandal trees require permission from competent authority of Forest Department. The explanation of the Estate Owner that it is a wind-fallen tree is not correct, because the seized stock itself speaks that trees were green which have been cut and stored. Further nobody is empowered to store any kind of sandalwood billets without obtaining a valid possession licence." 17.In the meanwhile, the petitioner moved for anticipatory bail from this court on 25.08.1993 against his arrest. 18.The petitioner also preferred an appeal against the orders of confiscation being Criminal Appeal Nos.102 to 105 of 1993 before the Sessions Judge, Salem under Section 49-D of the Tamil Nadu Forest Act, 1882. The appellate court, by a judgment dated 23.09.1994, dismissed the appeals and confirmed the order of confiscation. The appellate court placed reliance of Section 36-A of the Tamil Nadu Forest Act, wherein the possession of sandalwood exceeding 5 Kgs., the possessor must have the licence granted by the https://hcservices.ecourts.gov.in/hcservices/ District Forest Officer. Under Section 40-A, if the person who claims ownership, does not establish right or title, then those timber shall be deemed to be the property of the State. Section 40-G also prohibits trade in sandalwood and it also prohibits any person felling the sandalwood without the written permission of the Chief Conservator of Forest or any other Officer. It is against this order of the appellate court, confirming the confiscation by the Officer, these writ petitions have been filed, as noted already. 19.Mr.N.Jothi, the learned counsel for the petitioner submitted that Section 40-G of the Tamil Nadu Forest Act provides for a royalty for any timber removed by the Government. He also stated that Section 40-H to 40-M of the Tamil Nadu Forest Act is almost equivalent to that of land acquisition proceedings and the authorities are bound to conduct an enquiry to grant compensation. Since the petitioner is the owner of the property, he is entitled for 'kudivila', which is akin to royalty. According to the petitioner, by G.O.Ms.No.1489, Revenue, dated 19.09.1924, the Forest policy regarding reservation of sandalwood trees to be ratained by the Government only after the Government Order, dated 19.09.1924 and any possession before that date is not covered by the said order. Therefore, any sandalwood tree standing on the patta lands assigned before 1924 belongs to the pattadars and the Government has no right over the said land. Even G.O.Ms.No.120, Forest and Treasuries dated 17.02.1979 providing permit for extraction of sandalwood standing in patta land belong to the owner and it only makes a permission for possession in excess of 3 Kgs. from the Forest Department. 20.According to the petitioner, the sandalwood belongs to the petitioner and he is the owner of the sandalwood and he is the one who wrote to the Department as early as 1988 to remove the fallen sandalwood trees and paid the 'kudivila'. He also stated that the Form 1 prescribed under the Tamil Nadu Sandalwood Possession Rules 1970, will not apply to the petitioner's case. It is submitted that the Government has admitted that the property belonged to the petitioner in the counter affidavit filed in the earlier suit. 21.In the absence of any law in favour of the respondents, there is no power of confiscation. On such take over of the property of the petitioner, he is entitled to get money equivalent of 81,201.50 Kgs. together with interest at the rate of 12%. He also referred to Sections 70, 71 and 72 of the Indian Contract Act, 1872 to drive home the point that the respondents have not a mere moral obligation, but legal obligation to make the payment. He also submitted even if there is no written bilateral contract for compensation, he is entitled for 'kudivila'. https://hcservices.ecourts.gov.in/hcservices/ 22.In this context, he referred to several decisions of the various High Courts and the Supreme Court. The first case cited by him was the judgment of the Supreme Court in O.N.G.C. v. Assocn. of Natural Gas Consuming Inds. and others reported in AIR 2001 SC 2796. In that case, the Supreme Court recognized the right of ONGC to demand interest on the basis of principles of deemed renewal of contract and restitution. 23.Similarly, he placed reliance upon the judgment of the Supreme Court in K.S.Satyanarayana v. V.R.Narayana Rao reported in AIR 1999 SC 2544 for suggesting that doctrine of undue enrichment will apply and for that purpose Section 70 to 72 can be pressed into service. 24.He also placed reliance upon the judgment of the Supreme Court in Pannalal v. Dy. Commissioner, Bhandara and another reported in AIR 1973 SC 1174 for the purpose of showing Section 70 of the Contract Act applies even to corporate bodies and Government. 25.Further reliance was placed upon the judgment of the Supreme Court in Pilloo Dhunji Shaw Sidhwa v. Municipal Corporation of the City of Poona reported in AIR 1970 SC 1201 to show that for the compensation of the goods supplied, the purchaser is bound to pay the market price of the goods. 26.He also placed reliance upon the judgment of the Supreme Court in V.R.Subramanyam v. B.Thayappa and others reported in AIR 1966 SC 1034 to show that if a party to the contract has rendered service to the other not intending to do so gratuitously and the other person has obtained some benefit, the former is entitled to compensation for the value of the services rendered by him. 27.Further reliance was placed upon the judgment of the Supreme Court in State of West Bengal v. M/s.B.K.Mondal and Sons reported in AIR 1962 SC 779 and reply upon the following passage: "If, in all these cases, what is done in pursuance of the contracts is for the benefit of the Government and for their use and enjoyment and is otherwise legitimate and proper, S.70 would step in and support a claim for compensation made by the contracting parties notwithstanding the fact that the contracts had not been made as required by S.175(3)."(Government of India Act). 28.He further relied upon the judgment of the Supreme Court in Union of India v. Amar Singh reported in AIR 1960 SC 233 for the purpose of showing that even there is no treaty between two countries, namely India and Pakistan that the plaintiff who delivered goods to the receiving railways, then an implied agency https://hcservices.ecourts.gov.in/hcservices/ can be created between the receiving railway and the forwarding railway. In such circumstances, the liability of the forwarding railway was governed by Section 72 of the Contract Act. 29.Though the learned counsel relied on several other decisions of various High Courts for the very same propositions, for the sake of brevity, they are not referred to here. 30.Per contra, Mr.S.Ramasamy, the learned Additional Advocate General submitted that the petitioner has no right to own or dispose of sandalwood and in all these cases, the owner is the State Government. In fact, by the advent of Tamil Nadu Hill Areas (Preservation of Trees) Act, 1955, no person can cut any tree without permission if it is situated in the hill area as notified under the Act . Under the schedule to the act, Yercaud area has also been notified. Inasmuch as the petitioner had the stock of not only dead trees, but also felled trees, he is not entitled to keep in his possession of the same and it would be in direct violation of Section 40-G of the Tamil Nadu Forest Act and it reads as follows: "40-G. Royalties:- (1)Trees of the following Species that is to say, teak, black wood, ebony and sandal wood and also ivory and teeth of elephants, whether grown or found on Government land or private property, are royalties and no trade shall be carried on in them unless they have been duly obtained from the Government. (2)The trees mentioned in sub-section (1) shall not be felled by any person without the written permission of the Chief Conservator of Forest or such other officer as, may be authorised by him in writing, but the owner of any property on which a teak, black wood, ebony or sandalwood tree is standing may after obtaining the written permission of the Chief Conservator of Forests or other officer authorised by him as a aforesaid, and on such terms as the Government may determine fell any such tree for his private use, and when any such tree is removed from such property on account of the Government, the owner shall be entitled to a payment herein after referred to in this Chapter as kudivila at rates which the Government may from time to time determine." 31.The learned Additional Advocate General submitted that for the purpose of providing royalty, procedure has been prescribed in terms of Sections 40-H, 40-I, 40-J, 40-K, 40-L and 40-M. Such a procedure was not followed in the case of the petitioner, as the petitioner was not entitled for any kudivila and the tree belonged to the Government. Even otherwise, in case of illegal felling of sandalwood trees, the Act requires the procedure under Sections 49-A and 49-B of the Tamil Nadu Forest Act to be followed. He submitted https://hcservices.ecourts.gov.in/hcservices/ that penalties have been provided for breach of rules under Section 36. 32.Under Section 36-F, a person has no right to trade in sandalwood trees other than the Government and the Government is also empowered to make rules regarding dealing with such sandalwood trees. The petitioner is not entitled for any relief as he had committed violations of the Tamil Nadu Forest Act and Tamil Nadu Hill Areas (Preservation of Trees) Act as well as Sandalwood Possession Rules, 1970. It has been found as a matter of fact that the sandalwood confiscated from the petitioner were not dead trees, but cut trees and kept secretly in the godowns of the petitioner's estate and he can seek neither any compensation nor royalty. 33.The learned AAG drew the attention of the Supreme Court in a judgment reported in Divisional Forest Officer and another v. G.V.Sudhakar Rao and others reported in (1985) 4 SCC 573. He relied upon the following passage found in para 12 for the purpose of showing that under the relevant provision of the Forest Act, confiscation and imposition of penalty have two different procedures and they are independent of each other. The said passage may be usefully extracted below: "12. A close, careful and combined reading of the various sub-sections of Section 44, Section 45 and Section 58-A of the Act as introduced or amended by Act 17 of 1976 leaves no doubt that the intendment of the Legislature was to provide for two separate proceedings before two different forums and there is no conflict of jurisdiction as Section 45, as amended by the Amendment Act, in terms curtails the power conferred on the Magistrate to direct confiscation of timber or forest produce on conviction of the accused. The conferral of power of confiscation of seized timber or forest produce and the implements etc. on the Authorized Officer under sub-section (2-A) of Section 44 of the Act on his being satisfied that a forest offence had been committed in respect thereof, is