IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 6TH OCTOBER 2010 / 14TH ASWINA 1932 WP(C).No. 4980 of 2006(P) ------------------------------------- CMA.64/1998 of DISTRICT COURT, PATHANAMTHITTA .................... PETITIONER(S): ----------------------- 1. STATE OF KERALA, REP. BY THE CONSERVATOR OF FORESTS, SOUTHERN CIRCLE, KOLLAM. 2. THE DIVISIONAL FOREST OFFICER, RANNI DIVISION, PATHANAMTHITTA. BY SPL.GOVT. PLEADER FOR FOREST MR.P.M. POULOSE. RESPONDENT(S): -------------------------- B. SURESHKUMAR, MELETHEKKANATTU VEEDU, KULATHOOR P.O., KOTTANGAL, PATHANAMTHITTA DISTRICT. BY ADV. SRI.C.S.MANILAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 4980/2006-P APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.A2-8254/97 DATED 16/01/1998. EXT.P2: COPY OF THE JUDGMENT IN CMA NO.64/1998 OF THE DISTRICT JUDGE, PATHANAMTHITTA DATED 22/08/2005. EXT.P1(a): COPY OF THE PROCEEDINGS ORDER NO.A2-8254/98 DATED 18/08/1998 OF THE DIVISIONAL FOREST OFFICER, RANNI. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.4980 OF 2006 ------------------------------- DATED THIS THE 6TH DAY OF OCTOBER, 2010 JUDGMENT State of Kerala represented by the Conservator of Forests, Southern Circle, Kollam and the Divisional Forest Officer, Ranni Division, Pathanamthitta are the petitioners. In the petition filed under Article 227 of the Constitution of India the relief sought for is to set aside Ext.P2 judgment of the District Judge, Pathanamthitta. The appeal was filed by the vehicle owner under Section 61D of the Kerala forest Act challenging the order dated 18/8/1998 of the Divisional Forest Officer, Ranni, confiscating the tempo van bearing Regn.No.KL-3/A 6825. The respondent herein is the registered owner of the said tempo van. The said tempo van was seized by the officers of the Forest Department for the alleged illegal transportation of teak timber from the reserve forest in Ranni Range. The vehicle and the seized timber were produced before the authorised officer and the authorised officer, after completing -2- WP(C).No.4980/2006 enquiry, ordered confiscation of the seized vehicle and timber by order dated 16/1/1998. The forest station staff of Ranni Range had detected one teak tree which according to the petitioners, was illicitly felled and removed and an offence was registered as OR.No.12/97. Another offence of illicit felling of two teak trees was registered as OR.13/97. It is the case of the department that on enquiry it was revealed that the tempo van owned by the respondent was used for the illicit transportation of the logs of timber cut from the aforesaid trees. The vehicle was seized under Section 52 of the Kerala Forest Act and produced before the authorised officer and the authorised officer initiated proceedings under Section 61A of the Kerala Forest Act. The authorised officer held that the logs seized as per mahazar were the property of the Government and the vehicle had been used for commission of the offence. Ext.P1 is the copy of the order passed by the Divisional Forest Officer, Ranni. In Ext.P1 the Divisional Forest Officer, after recording the evidence held that the owner-cum-driver of the tempo van unknowingly got -3- WP(C).No.4980/2006 himself involved in the illicit transport of Government timber from the encroached land and therefore the vehicle is not liable to be confiscated. The authorised officer further held that the timber involved is liable to be confiscated and the loss sustained to the Government was also recommended to be recovered from the occupants of the land. The authorised officer concluded that the timber logs are Government property as the timber was collected from the occupied land in Valiakavu proposed reserve forest and the vehicle was used for the commission of offence by transporting the said timber to Changanacherry without any valid pass or documents. The authorised officer also held that from the facts and materials discussed in the order, he was convinced that the owner- cum-driver of the tempo van got himself involved in the illicit transport of Government timber collected from the encroached land under the impression that the valid transit permits were obtained and available with the person, who was in charge of the case. The statement of the person, who is the custodian of the timber, was -4- WP(C).No.4980/2006 also relied on by the authorised officer which reveals that the owner cum driver of the tempo van was misguided by him. The officer also observed that the Range Officer Ranni also came to the very same conclusion during the investigation. Accordingly, the Authorised Officer held that he was convinced that the case cannot be proceeded under Section 61A of the Kerala Forest Act in respect of the vehicle and therefore ordered that the vehicle is not liable for confiscation. It is further ordered that the timber seized is Government property and is liable for confiscation. 2. Subsequently, the Conservator of Forests, Ranni, suo motu called for and examined Ext.P1 order. He enquired the matter and passed an order on 31/1/1998. The Conservator of Forests passed the order within two weeks from the date of the order passed by the authorised officer. The order was passed in exercise of the revisional power conferred under Section 61C of the Kerala Forest Act. Under Section 61C of the said Act, any forest officer not below the rank of Conservator of Forests may before the -5- WP(C).No.4980/2006 expiry of thirty days from the date of the order of the authorised officer under Section 61A, suo motu call for and examine the record of that order and may make such inquiry or cause such inquiry to be made and may pass such order as he deems fit. Proviso to Section 61 C states that no order prejudicial to a person shall be passed under this section without giving him an opportunity of being heard. From the records it is clear that the order was passed by the Conservator of Forests without issuing notice. The order also reveals that copy of the order was not communicated to the respondent, who is the only person affected by the confiscation order passed by the Conservator of Forests. Section 61C of the Act deals with suo motu revision by the Conservator of Forests against the order of the authorised officer. The Conservator of Forests without hearing (admittedly did not issue notice) the owner of the vehicle passed the order. The Conservator of Forests by order dated 31/1/1998 set aside the order passed by the authorised officer on 16/1/1998 and ordered denovo -6- WP(C).No.4980/2006 enquiry into the question as to whether the vehicle belonging to the respondent is liable to be confiscated or not. The said order passed without hearing and without issuing notice to the affected parties is patently illegal and without jurisdiction. There is a patent violation of the provisions of Section 61C of the Act. The order was passed behind the back of the owner of the vehicle, which is not binding on him. 3. Based on the order passed by the Conservator of Forests, again the authorised officer conducted denovo enquiry into the question as to whether the vehicle is liable to be confiscated or not. By the second order passed by the authorised officer on 18/8/1998 he reversed the first order dated 16/1/1998 and ordered confiscation of the vehicle along with the accessories. Ext.P1(a) is the order dated 18/8/1998. The respondent challenged the said order in appeal before the District Court, Pathanamthitta. In the memorandum of appeal filed under Section 61D of the Kerala Forest Act it is stated in paragraph 12 that the order passed by the -7- WP(C).No.4980/2006 Conservator of Forests ordering denovo enquiry is patently illegal. In Ground E also the contention is that the order of denovo enquiry passed by the Conservator of Forests is absolutely without jurisdiction in so far as neither the Forest Act nor the Rules thereunder gives any power to the Conservator of Forests to interfere at the enquiry stage. In Ground F it is stated that being a revisional authority under Section 61C, the Conservator of Forests has absolutely no power or authority to fetter the power of the original authority while the proceedings are in progress before the original authority. In Ground G it is stated that the denovo enquiry ordered is illegal and unsustainable. In Ground H it is further stated that while exercising a power of revision suo motu by the Conservator, he can pass order only after hearing the person affected. It is also stated therein that the order passed by the authorised officer dated 16/1/1998 is set aside by the Conservator of Forests without hearing the appellant (respondent herein) and therefore the order of set aside without hearing the appellant is -8- WP(C).No.4980/2006 violative of the provision to Section 61C of the Forest Act and is illegal. The authorised officer passed the 2nd order dated 18/8/1998 based on the directions contained in the order dated 31/1/1998 passed by the Conservator of Forests. 4. I have already said that the order passed by the Conservator of Forests without issuing notice and without hearing the affected person is patently illegal and without jurisdiction. Therefore, the order dated 18/8/1998 passed by the authorised officer based on the direction issued by the Conservator of Forests in his order dated 31/1/1998 is also unsustainable in law. 5. The Appellate Court, after examining the contentions raised by the appellant, observed that instead of satisfying himself objectionally and in good faith, authorised the Forest Range Officer for conducting an enquiry. Even after getting the enquiry report containing recommendation not to confiscate the property seized, instead of passing an order based on the enquiry report, send the enquiry report together with the records to the -9- WP(C).No.4980/2006 Superior Officer, namely, Conservator of Forests. The Superior Officer suo motu revised the order. He set aside the enquiry report of the Range Officer and the order of the authorised officer dated 16/1/1998, directed denovo enquiry by the authorised officer and directed to pass orders afresh. The Appellate Court appreciated the conduct of the authorised officer and the Conservator of Forests and held that the procedure adopted by them is vitiated by illegality. 6. The Appellate Court also examined the statements of witnesses and the subsequent report prepared by the Forest Range Officer. The Appellate Court observed that though the authorised officer conducted a further enquiry as per the direction of the Conservator of Forests, it could be found that he has largely depend upon the enquiry made by the Range Officer for the decision. The Court also held that the procedure followed by the authorised officer is vitiated by illegality. 7. The court after rejecting the report and the order of the authorised officer held that the said materials revealed that -10- WP(C).No.4980/2006 the timber from teak trees felled from the lands of similar status in the same village, involved in OR. Nos.3/90, 4/90 and 5/90 of Karikulam Forest Station was released to the occupants, that so it is abundantly clear that the teak wood involved in this case is not the timber arranged from teak trees felled from any Government forest land, but from the occupied forest by the private party and therefore the timber cannot be said to be belonged to the Government. In the said context, the court held that it can never be said that the forest offence has been committed in respect of the timber and that the confiscation is not legal. 8. By the first order dated 16/1/1998 the authorised officer ordered confiscation of the timber. That was not reversed in the second order passed by the authorised officer on 18/8/1998. We are only concerned with the question as to whether confiscation of the vehicle is lawfully made or not. The court, after analysing the materials on record, held that the procedure adopted by the authorised officer and the Conservator of Forests is vitiated by -11- WP(C).No.4980/2006 illegality and that the order dated 18/8/1998 confiscating the vehicle is therefore illegal. The court concluded that the order under challenge is not only vitiated by procedural illegality but also on merit and held that the tempo van which belongs to the appellant was not used for committing the forest offence and therefore the order of confiscation passed by the authorised officer is set aside. 9. The facts and circumstances leading to the passing of Exts.P1, P1(a) and P2 are discussed in detail in the preceding paragraphs. I do not find any illegality or irregularity in the impugned order, which is under challenge. No vitiating circumstances nor jurisdictional error is noticed by the court. Writ Petition fails and accordingly dismissed. HARUN-UL-RASHID, Judge kcv.