IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 15TH SEPTEMBER 2009 / 24TH BHADRA 1931 WP(C).No. 16421 of 2006(E) ------------------------------------ PETITIONER(S): -------------------- JOSE MATHEW, S/O MATHEW, RESIDING AT KOZHIPALLY, KOTHAMANGALAM. BY ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.P.B.KRISHNAN RESPONDENT(S): ----------------------- 1. THE SUB INSPECTOR OF POLICE, CUMBUMMETTU POLICE STATION, IDUKKI DISTRICT. 2. THE FOREST RANGE OFFICER, KUMILY RANGE, KUMILY, IDUKKI. 3. THE SALES TAX OFFICER, SALES TAX CHECK POST, CUMBUMMETTU, IDUKKI DISTRICT. 4. THE INSPECTOR, COMMERCIAL TAX CHECK POST CUMBUMMETTU, IDUKKI. ADV. SRI.C.K.ANTONY.I.F.S.(RTD) EXPERT COMMR. FOR COMMISSIONR GOVERNMENT PLEADER FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/09/2009, THE COURT ON 15/09/2009 DELIVERED THE FOLLOWING: APPENDIX Petitioners Exhibits: Ext.P1: Copy of bill issued by M/s.Senthil Arts, Karaikudi. Ext.P2: Copy of the receipt issued by M/s.R.K. Saw Mill,Karaikudi. Ext.P3: Copy of the certificate issued by the Tahsildar, Karaikudi Ext.P4: Copy of the notiice ET.24/06-07 issued by the Tax Department Ext.P5: Copy of th notice OR.No.385/06-07 issued under the Kerala Value Added Tax Rules 2005. Ext.P6: Copy of the petition by the petitioner before respondent No.1 Ext.P7: Copy of the petition filed by the petitioner before the 4th respondent. Respondent's Exhibit Ext.R2(a) : Copy of the Mahazar dated 16.6.2006. Ext.R2(b): Copy of Form I Report i OR.34/06. /True copy/ P.A. To Judge. sou. P.N.RAVINDRAN,J. ---------------------------------------- W.P.(C) No. 16421 of 2006 - E ---------------------------------------- Dated 15th September, 2009 Judgment The petitioner is the registered owner of a goods vehicle bearing registration No.KL/17-8340. His brother Sri.James Mathew is the Managing Partner of M/s.Hill Valley Resort, a partnership firm registered under the Indian Partnership Act, 1932. The said firm had purchased old teakwood timber from M/s.Shenthil Arts, Karaikudi, a registered dealer under the Central Sales Tax Act and Tamilnadu General Sales Tax, engaged in the business of selling timber retrieved from old buildings. The old teakwood purchased by the aforesaid firm from M/s.Shenthil Arts, Karaikudi, were transported in the goods vehicle belonging to the petitioner accompanied by relevant documents including a certificate issued by the Tahsildar, Karaikudi. 2. When the vehicle carrying the goods reached the Sales Tax Checkpost at Kampam Medu, it was detained by the W.P.(C) No.16421/2009 2 officers of the Department of Commercial Taxes, Government of Kerala on the ground that there was an attempt to evade payment of entry tax and value added tax. While the vehicle was in the custody of the officers of the Commercial Tax Department, an attempt was made by the officers of the Forest Department to take custody of the vehicle and the goods carried therein. This writ petition was thereupon filed seeking the following reliefs: “(i) issue a writ of mandamus or any other appropriate writ or direction restraining the Forest Range Officer, Kumily Range, respondent No.2 herein, from seizing, taking possession or initiating any proceedings against the Ashok Leyland Lorry Regn. No.KL-17/8340 and the goods kept therein. (ii) issue a writ of mandamus or any other appropriate writ, order or direction restraining respondent No.2 from interfering with the release of the Ashok Leyland Lorry bearing Regn. No.KL-17/8340 and goods kept therein to the petitioner by respondents 1, 3 and 4. (iii) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to deliver possession of the Ashok Leyland bearing Regn. No.KL-17/8340 and the goods kept therein to the petitioner.” W.P.(C) No.16421/2009 3 2. The petitioner contends that the officers of the Forest Department have no right to proceed against the vehicle or the goods for the reason that transportation of old timber from the State of Tamilnadu to the State of Kerala does not attract the provisions of the Kerala Forest Act, 1961. The petitioner contends that such being the situation, the officers of the Forest Department have no right or authority to seize the vehicle and the goods carried therein. 3. When this writ petition came up for admission on 20.9.2009, this Court directed the officer having custody of the vehicle and timber to transport it to the Forest Office at Edappally. This Court also directed the petitioner to suggest the name of a reliable person for inspection of the goods in the presence of the Forest officers. The petitioner thereupon filed a memo dated 3.7.2006 suggesting that Sri.C.K.Antony, IFS (Retd.), residing in Plot No.M8, Changampuzha Nagar, Kochi – 33 may be appointed to inspect the timer and to submit a report. This Court thereupon passed an order dated 7.7.2006 appointing Sri.C.K.Antony named above as Expert W.P.(C) No.16421/2009 4 Commissioner to inspect the timber in question and to report whether the timber is old timber or newly cut teakwood. 4. Pursuant to the directions issued by this Court, the Commissioner inspected the timber and filed a report on 1.8.2006 accompanied by photographs. The Commissioner has reported that the timber carried in the petitioner's vehicle is old and used timber and not newly cut timber. This Court thereafter passed an interim order on 4.8.2006 directing the respondents to release the timber and the vehicle to the petitioner on the petitioner furnishing security for the value of the timber and the vehicle which was fixed as Rs.10,00,000/-. This Court further directed that the security should be by way of bank guarantee for Rs.2,50,000/- and in the form of a bond for the balance amount with two solvent sureties for the like sum. This Court also directed that the timber and the vehicle shall be released immediately upon the petitioner furnishing security as directed by this Court. Pursuant to the directions issued by this Court, the timber and the vehicle were released to the petitioner on his complying with the conditions W.P.(C) No.16421/2009 5 stipulated by this Court. Later, when the writ petition came up for further hearing on 10.8.2007, this Court directed the petitioner to pay the sum of Rs.30,000/- to Sri.C.K.Antony, Expert Commissioner. This Court also ordered that the question whether the petitioner should meet the expenses or the State should meet the expenses will be decided at the time of final hearing. The writ petition was formally admitted thereafter. 5. When the writ petition came up for hearing today, the learned Government Pleader submitted that proceedings have been initiated by the Divisional Forest Officer, Kottayam under section 61A of the Kerala Forest Act, 1961 and the Divisional Forest Officer is yet to pass final orders in the matter. In my opinion, in view of the fact that proceedings under section 61A have already been initiated by the competent authority, the petitioner should raise his claims and contentions before that authority. Under the provisions of the Kerala Forest Act, an appeal lies to the District Court having jurisdiction over the area in which the property to which the order relates has been W.P.(C) No.16421/2009 6 seized from the decision of the competent authority if he orders confiscation of the vehicle and the timber. I am therefore of the opinion that the petitioner should raise all his contentions before the Divisional Forest Officer, Kottayam who has initiated proceedings under section 61A of the Act. I accordingly dispose of this writ petition with the following directions: (i) The Divisional Forest Officer, Kottayam shall finalise the proceedings initiated by him under section 61A of the KeralaForest Act after notice to and affording the petitioner a reasonable opportunity to state his case within three months from the date of receipt of a certified copy of this judgment. (ii) It will be open to the petitioner to raise all his contentions before the Divisional Forest Officer, Kottayam and also produce documents in support of his claims and contentions before the said officer. The Divisional Forest Officer, Kottayam shall pass an order giving reasons in support of his findings and conclusions and shall expeditiously thereafter communicate a copy thereof to the petitioner. W.P.(C) No.16421/2009 7 (iii) The petitioner shall hold custody of the vehicle and the goods subject to the orders to be passed by the Divisional Forest Officer, Kottayam. In the event of the Divisional Forest Officer, Kottayam ordering confiscation of the vehicle together with the timer carried in it, the implementation of the order shall be kept in abeyance for a period of one month from the date of communication of the order in order to enable the petitioner to move the District Court in appeal under section 61D of the Kerala Forest Act. P.N.RAVINDRAN Judge vaa