IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 18TH JANUARY 2008 / 28TH POUSHA 1929 OP.No. 3820 of 2001(D) -------------------------------- PETITIONER: ------------------- SHIJO S/O. VARGHESE, AGED 28, MECHERIL HOUSE, CHENKAL, KALADY. BY ADV. SRI.S.SREEKUMAR RESPONDENTS: ----------------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY (FOREST), GOVERNMENT SECRETARIATE, TRIVANDRUM. 2. THE DIVISIONAL FOREST OFFICER, MALAYATTOOR, KODANADU. BY GOVERNMENT PLEADER SRI.RANJITH THAMPAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.3820/2001 ORDER ON CMP. NO.6320/2001 IN OP. NO.3820/2001 DISMISSED 18.01.2008 SD/- K.M.JOSEPH, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE SHOW CAUSE NOTICE DT. 11.3.98 ISSUED BY THE 2ND R ESPO TO THE PETITIONER. EXT.P2:- COPY OF THE EXPLANATION DT. 21.3.98 SUBMITTED BY THE PETITIONER. EXT.P3:- COPY OF THE CERTIFICATE WITH A SKETCH ISSUED BY VILLAGE OFFICE, AYYAMPUZHA DT. 4.12.97. EXT.P:- COPY OF THE ORDER NO.B-585/87 DT. 16.5.98 BY THE 2ND RESPONDENT. EXT.P5:- COPY OF THE APPEAL MEMORANDUM DT. 12.10.98 SUBMITTED BEFORE THE DISTRICT COURT ERNAKULAM. EXT.P6:- COPY OF THE JUDGMENT IN CMA. 83/98 DT. 19.9.2000 BY THE DISTRICT COURT, ERNAKULAM. RESPONDENT'S EXHIBITS EXT.R2(a):- COPY OF THE LETTER DT. 13.3.01 ADDRESSED TO THE PETITIONER. EXT.R2(b):- COPY OF THE LETTER DT., 26.3.01 ADDRESSED TO THE PETITIONER. /TRUE COPY/ P.A. TO JUDGE tss K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - O.P. No.3820 of 2001 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 18th day of January, 2008 JUDGMENT Petitioner challenges Exts.P4 and P6. Ext.P4 is the order passed by the forest authority ordering confiscation of the jeep belonging to the petitioner. Petitioner carried the matter in Ext.P5 appeal resulting in Ext.P6 judgment of the District Judge under Section 61 A of the Kerala Forest Act. 2. I heard learned counsel for the petitioner and the learned Special Government Pleader. 3. Sri. S.Sreekumar, learned counsel for the petitioner would contend that the order is vitiated. He would contend that this is a case where the petitioner had adduced materials to show that no forest offence was committed. Ext.P3, the certificate issued by the Village Officer, is produced to show that the four teak logs, which were transported in the petitioner's jeep leading to the confiscation were actually part of a teak tree standing in a private property. Learned counsel for the petitioner submits that this is a fit case where it may be taken that the petitioner has rebutted the presumption as available under Section 69 of the Kerala Forest Act. He would further contend that this aspect has not received the attention at the O.P. 3820/2001. 2 hands of the authority as also the appellate authority. 4. On a perusal of Ext.P6 order, I am of the view that there is little merit in the said contention. I find that it was indeed considered by the appellate authority and a finding has been rendered. It reads as follows: “It is essential that the timber logs transported, must be shown to be the property of the government. Timer logs can be either the property of the Government or the property of the private individuals. The law is aware of the difficulty which may arise in proving whether the property belongs to the Government or not. The object of the statute is to prevent illegal removal of the forest wealth. Preservation of forests is the underlying philosophy of the statute. To facilitate the achievement of that objective and to advance the purpose of the statute a legal fiction is pressed into service by the legislature. S.69 enacts that presumption. In all proceedings for confiscation it has to be presumed under S.69, until the contrary is proved, that the forest produce seized is the property of the Government. A forest produce is defined under S.2(f). Timber logs in the instant case to fall within the definition of forest produce under S.2(f). Consequently there is a presumption which can be drawn under S.69 that the timber logs involved in this case are the property of the Government. An attempt has been made to discharge this burden by O.P. 3820/2001. 3 contending that the logs were removed from private property. That contention has not been established satisfactorily. We have evidence to show that the 4 teak logs seized when examined by the forest officials were found to tally with the stem of the teak tree within the forest which was cut and removed. Going by the indications available about the nature of the weapons used for cutting down the tree and the age of such cutting, the Authorised Officer had come to the conclusion that the timber logs seized are obtained by cutting the teak tree detected by the forest officials on 19.12.1997. No satisfactory evidence whatever has been adduced to discharge the presumption under S.69 of the Act. I am in these circumstances satisfied that the 4th ingredient -- that the property/timber involved in this case is the property of the Government has also been established satisfactorily. At any rate, the presumption under S.69 remains undischarged.” 5. I must remind myself that the jurisdiction exercised by this court is only under Article 226, which is a supervisory jurisdiction and not an appellate jurisdiction. The limitations are well delineated. This court cannot re-appreciate the materials and come to a different conclusion even if another view may be possible. I do not think that this is a fit case where despite Ext.P3, the order passed by the authority can be characterised as perverse. If that is so, there is no merit in the said contention. No doubt, O.P. 3820/2001. 4 learned counsel for the petitioner would point out that having regard to the value of the logs transported, it is not a fit case where confiscation ought to have been ordered. Confiscation cannot be ordered as a rule, it is submitted. Discretion is vested under the Act, which must be exercised soundly and as per the decision reported in D.F.O. v. Krishnan Nair (2002(1) K.L.J. 657). I do not think that in the facts of this case it could be said that the petitioner is right in contending that the appellate authority has committed illegality in confirming the order passed by the authority ordering confiscation of the vehicle. No other view is possible. The Original Petition fails and it is dismissed. (K.M. JOSEPH, JUDGE) sb O.P. 3820/2001. 5 K.M. JOSEPH, J. -------------------------------- O.P. No.3820 of 2001 -------------------------------- JUDGMENT 18.1.2008.