IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 9643 of 2010(E) ------------------------- PETITIONER: ---------------- DR. JIKKU PHILIP, AGED 42 YEARS, S/o PHILIP, KOTTAPARAMBIL HOUSE, THONDIAR DESOM, PERIYAR VILLAGE, PEERUMEDU. BY ADV. SRI.A.S.RAJENDRAN NAIR RESPONDENTS: --------------------- 1. THE DIVISIONAL FOREST OFFICER KOTTAYAM 2. FOREST RANGE OFFICER, KUMALI BY SPL. GOVT. PLEADER (FOREST) SRI. M.H.HANIL KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R.RAMACHANDRAN NAIR, J. ---------------------------------------------- W.P.(C)No.9643 OF 2010 ----------------------------------------------------- DATED THIS THE 23rd DAY OF MARCH, 2010 J U D G M E N T The petitioner is the owner in possession of 2.4281 hectors of land in Survey No.243 of Periyar Village. 21 trees of different varieties were sought to be cut and removed by the petitioner for which the petitioner filed an application for sanction under the Kerala Promotion to Tree Growth in Non Forest Areas Act, 2005. The petitioner waited for some days. On the presumption that sanction has been ordered, the petitioner has already cut down the trees. This has resulted in the Forest Department, registering a crime as Crime No.4/2010 under Section 6(3) of the Kerala Promotion of Tree Growth in Non Forest Act, 2005. Exhibit P4 is the mahazar prepared in the said case. It is stated that the report has been forwarded to the Chief Judicial Magistrate, Peermade. Seeking release of the timber, the petitioner moved an application before the learned Magistrate, which according to the petitioner was not allowed. It is the case of the petitioner that the same is not considered, in the light of Section 10 of the W.P.(C)No.9643/10 -2- Act, which confers a power on the Divisional Forest Officer to release the same on execution of a bond for production of the property so seized if and when so required. The petitioner is relying upon the decision of this Court in Sukumaran v. State of Kerala (2010(1) KLT 546), produced as Exhibit P6 herein. Therein, this Court held that: “18. S.11 provides that upon receipt of the report under Cl.(a) of Sub-s.(3) of S.9, the Magistrate shall take such measures as may be necessary, for the trial of the accused and disposal of the timber, tool, rope, chain or other article or any boat; vehicle or animal seized along with it, according to law. S.13 provides for the cognizance of the offence. Under the Section, an offence punishable under this Act shall be tried before a court of Judicial Magistrate of the First Class having jurisdiction. S.12 provides that no prosecution shall be instituted against any person without the sanction of the Divisional Forest W.P.(C)No.9643/10 -3- Officer. The Act does not provide for confiscation”. 2. In the light of the above, there is a jurisdiction for the Divisional Forest Officer to consider the application. There will be a direction to the Divisional Forest Officer to consider Exhibit P5 and take a decision thereon within a period of 10 days from the date or receipt of a copy of this judgment, in the light of the power conferred under Section 10 of the Act. The Writ Petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE dsn