IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 1845 of 2003()
1. C.K.MOHAMMED ALI, S/O.HAMZA, RESIDING
... Petitioner
Vs
1. THE STATE OF KERALA REP. BY THE
... Respondent
2. THE DIVISIONAL FOREST OFFICER,
For Petitioner :SRI.V.CHITAMBARESH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.R.RAMAN
Dated :16/07/2007
O R D E R
P.R.RAMAN J.
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C.R.P.No.1845 OF 2003
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Dated this the 16th day of July, 2007
O R D E R
Petitioner is aggrieved by the order passed by the District Court,
Palakkad dismissing the appeal, C.M.A.No.67/2000 confirming the order
passed by the Divisional Forest Officer in Proceedings No.A2-2177/98, by
which the Jeep bearing Regn. No.KRP 4930 belonging to the petitioner was
found involved in a forest offence and was ordered to be seized.
2. On 5/4/1998 the Section Forester while inspecting the forest land,
known as “Chemparathimala” and while reaching the place “Manchakkallu”
which is closed to “Nellaya Cherplassery” road, found that two persons
were carrying timber pieces from the above forest area and loading it into a
jeep KRP 4930 which was put very close to adjacent Government forest at
the above road. It was also found that a gang of 11 persons were engaged in
cutting trees and collecting timber and firewood trespassing into the
Government forest area. The Forest Officer accordingly detained the
persons and jeep. It was found that the 3 acres of Government forest area
was cleared by these persons by cutting the trees and clearing the under
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growth illegally. Among the trees so cut includes 95 nos. of Teakwood, 1
no. of Rosewood, 1 no. of Sandalwood, 1 no. of Venga tree, 8 nos. of
Mullankayani, 12 nos. Vatta, 7 nos. of Manjapavatta, 2 nos. of Pathiri, 4
nos. of Idinjal, 6 nos. of Vaha, 3 nos. of Kanjiram, 3 nos. of Mullilam, 1
no. of Sindoram (total 144 nos.) and Teak poles 250 nos. (below 15 cm.
in girth). About 1 MT of firewood collected from above felled trees. It
was found that the above 11 persons having trespassed into the
Government forest for encroaching forest area and illicitly felling of trees
and clearing under growth, were arrested and the jeep was also seized
after preparing a mahazar. Petitioner is one among the several persons so
arrested. An offence was booked in Ottapalam Range as OR-10/98 under
Section 27(i)(d), (ii), (iii) (iv) 52 (i) and Section 61A of the Kerala Forest
Act. As per the statement of allegation, the 3rd accused Sebastian,
Surveyor of the Forest Mini Survey, under the Assistant Director of
Survey, Forest Mini Survey, Thiruvananthapuram with his active
collusion with the arrested accused committed this offence. The arrested
persons were produced before the Judicial First Class Magistrate’s Court
on 6/4/1998 and they were remanded to sub jail. The jeep, which was used
for attempted transport of Thondy materials, was seized and produced
before the Divisional Forest Officer, Palakkad. In the meanwhile, an
enquiry report was submitted and a detailed investigation was conducted
in the matter. All the accused persons including the petitioner gave
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statement. In the statement made by the petitioner, he admitted the
offence. He stated that he along with Kunhahammed (Accused No.2) with
8 workers were cleared about 3 acres of forest area and he had also prior
knowledge that the area is a Government forest and this offence was
committed with the connivance of the Surveyor, who rendered all help. It
is also admitted that he is the owner of the jeep seized and the jeep was
brought to the spot in order to transport the firewood collected from the
trees. The other accused persons also gave similar statements admitting
the guilt. In the statement given by the 2nd Accused, it was revealed that
Mohammed and Pokker had given about 6 1/2 acres of land near
Manjakkal area of Pattambi-Cherplassery road to him on a power of
attorney about 5 months ago, which is the land under the possession of the
Government. Since it is likely to take some time to settle the dispute, it
was decided to overcome the delay by a shortcut method. It was
accordingly that he met Sri Sebastian, the Surveyor of Forest Mini Survey
through a mediator. It appears an amount of Rs.1.5 lakhs towards
expenditure was claimed which was subsequently reduced to 1.20 lakhs
and the Surveyor demanded Rs.60,000/- as advance, that was agreed to.
On the next day an amount of Rs.60,000/- was entrusted to him and it was
decided to pay the balance amount on clearing all the papers and records
by the Surveyor. A further amount of Rs.20,000/- also was paid on
2/4/1998. It was informed by the Surveyor that since the records are
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already ready, instructions were given to cut the trees and clear the areas
by retaining cashew and jack trees if any. The Surveyor also directed
them to burn the cleared area properly. Tree felling started on the area
and the Surveyor visited the spot on the first day and on his demand,
Rs.20,000/- was again given to him. Before felling of the trees in the said
area, the Surveyor had demarcated about 6 1/2 acres by fixing new survey
stones out of which about 3 acres were already cleared and they were
caught by the forest officials while attempting to remove the timber and
firewood collected from the said area. This statement of
Kunhimohammed was fully endorsed by the mediator Narangakunju alias
Kunhumohammed, son of Unnimammu. From the file it is disclosed that
there were previously 3 OAs in respect of 6.58 acres of land. O.A.
Nos.19/92, 83/92 and 85/92 an extent of 1.58 acres, 3 acres and 2 acres
respectively in Sy.No.75/12 and 73/3. These O.As were dismissed by the
Forest Tribunal by a common order dated 19/91995. It is stated that the
entire area is in exclusive possession of the Forest Department. After the
order of the Tribunal, Pokker, the petitioner in O.A.No.83/92, had filed
O.S.No.258/96 before the Sub Court, Ottapalam claiming 3 acres of land,
the disputed property in O.A.No.83/92. It is stated that since the Forest
Tribunal has dismissed the case and the land being a forest, the act
committed by the petitioner herein in trespassing into the forest area and
cutting trees is a clear case of forest offence and therefore the vehicle
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attempted to carry wood is liable to be confiscated.
3. The petitioner contended that on 5/4/1998 he along with his
driver was coming to Nellaya from Cherplassery in his Jeep 4930 and on
reaching Manjakkallu, they found two forest guards standing on the road
along with Kunhahammed (Accused No.2). Since Kunhahammed was
related to the petitioner, he stopped the jeep and enquired about the
presence. Kunhahammed is stated to have told that the forest guards
wanted a lift to the forest office and accordingly lift was allowed and on
reaching forest office, Kulappully, they changed their attitude and
detained the petitioner along with others and produced before the
Magistrate’s Court. Petitioner denied his involvement in any forest
offence.
4. The vehicle involved in this case has been released to the
petitioner on furnishing a bank guarantee based on an order passed by this
Court. Thereafter, the case was tried and finally he was found guilty of
the offence. The Divisional Forest Officer has followed the procedure
laid down by law before holding that the petitioner’s vehicle is involved in
the offence. Show cause notices were issued to all the accused persons
including the petitioner. Accused 1, 2, 9 and 12 and two witness were
examined. Petitioner produced a partition deed No.2469/90 and also
placed reliance on the injunction order passed by the civil court in
O.S.No.2258/96 in respect of 5.21 acres of land comprised in
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Sy.Nos.75/1, 75/2 and 73/3. It appears that the interim orders if any
passed by the Sub Court was not however produced before the Divisional
Forest Officer, in spite of time granted to the petitioner. He proceeded to
discuss the evidence on record and based on the statement already filed by
the respective parties and in the attendant circumstances, he came to the
irresistible conclusion that it is undoubtedly established that the jeep KRP
4930 was used for commitment of forest offence as described and it was
with the full knowledge and consent of the owner and his driver. Besides
confiscating the vehicle, separate proceedings were also taken for
prosecution under Section 27 read with Section 62 of the Kerala Forest
Act. This order was appealed to the District Court. The court below
considered the legality or otherwise of the order passed by the Divisional
Forest Officer and whether any ground is made out for interference. In this
regard, the statement given by the parties before the Divisional Forest
Officer was looked into by the court below. The court below found that
there is nothing to disbelieve the genuineness of the statement alleged to
have been made by the appellant (petitioner herein) especially in the light
of the assurance by one Sebastian, who is working as Surveyor in the
Forest Mini Survey, Thiruvananthapuram. The court below did not find
in the factual situation any reason to interfere with the order passed by the
Divisional Forest Officer. It is against this order that the present C.R.P. is
filed.
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5. The learned counsel Sri V. Chitambaresh appearing for the
petitioner contended that in view of the order of injunction passed by the
civil court, it must be presumed that it is not a forest land and hence no
forest offence as alleged is committed. He also placed reliance on the
order of the Forest Tribunal in O.A.Nos.19/92, 83/93 and 85/92. As
rightly found by the Divisional Forest Officer, the above O.As. were
dismissed by the Forest Tribunal. It is not shown before me that there was
any appeal filed before this Court reversing the said order. On the other
hand, an attempt was made to approach the civil court to obtain an order
of injunction. Merely because there is an order of injunction, it does not
per se would show that the land from where the trees were cut is not a
forest land. The only authority competent to decide as to whether this is a
forest land or not is the Forest Tribunal. In the absence of any order of that
Tribunal holding that the area from where the trees were cut is not a forest
area, the petitioner cannot succeed. On the other hand, the Divisional
Forest Officer reached a conclusion that they knew that this is a
Government Forest Land and with the connivance of an officer that they
had committed the offence. The only question that arise for consideration
in this revision is as to whether in such circumstances, the order passed by
the District Court suffers from any error or illegality warranting
interference of this Court under Section 115 of the C.P.C. I have in
extenso discussed the matter and from the factual situation and also from
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the evidence on record already appreciated by two authorities, I do not
find that there is any illegality committed by the court below warranting
interference of this Court under Section 115 of the C.P.C.
Accordingly, C.R.P. is dismissed.
P.R.RAMAN,
Judge.
kcv.