IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29041 of 2009(Q)
1. JOJY THOMAS, S/O.P.A.THOMAS,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY ITS
... Respondent
2. THE DEPUTY CONSERVATOR OF FOREST,
3. THE DISTRICT FOREST OFFICER,
4. THE DEPUTY RANGER, GURUNATHANMANNU
For Petitioner :SRI.V.K.SUNIL
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :20/01/2011
O R D E R
THOMAS P JOSEPH, J.
----------------------------------------
W.P(C).No.29041 of 2009
---------------------------------------
Dated this 20th day of January, 2011
JUDGMENT
Petitioner, claiming to be the title holder in possession of a
plot of land which according to him is covered by Ext.P2, sale
deed seeks to quash Ext.P1, Form 1 report submitted by the
Deputy Range Officer under Sec.52 of the Kerala Forest Act (for
short, “the Act”). Case of petitioner is that for the purpose of
proper enjoyment of the property by replanting rubber plants he
cut down rubber trees and certain other trees standing in the
said schedule property which according to him is within his right
and entitlement as the absolute owner in possession of the
property. The timber were seized by the Deputy Range Officer
who submitted Ext.P1, report before the learned Judicial First
Class Magistrate, Pathanamthitta. It is contended by the
petitioner that Ext.P1 is bad in law in that it does not disclose any
of offence committed by the petitioner. According to the
petitioner in the absence of any offence committed by him, forest
officials had no authority to seize the timber under Sec.52 of the
Act. Petitioner therefore wanted Ext.P1, report to be quashed
and respondents be directed to release the timber to him.
W.P(C).No.29041 of 2009
-: 2 :-
2. I have heard learned counsel for petitioner and the
learned Special Government Pleader for forest. Learned counsel
for petitioner contends that in so far as no offence is disclosed by
Ext.P1, report the seizure is illegal. Learned Special Government
Pleader contended that the land in question is part of reserve
forest as notified by the Konni reserve forest notification dated
27.01.1897 (Annexure-R3(a)) and as per the policy of the then
Government, patta were issued in favour of occupants of the
lands for cultivation but, such lands are not so far disreserved
and hence continue to be part of reserve forest with the only
right for occupants to enjoy the property by effecting cultivation.
According to learned Special Government Pleader such
occupants have no right over the trees standing in the property
and have no right to cut and remove the same. It is pointed out
that by virtue of power vested with the Government under Sec.76
of the Act, Rules are made in the matter and the Rule governing
the matter is Kerala Forest (Preservation, Reproduction and
Disposal of Trees and Timber belonging to Government But
Grown On Lands In The Occupation Of Private Persons) Rules,
1975. According to the learned Special Government Pleader,
Sec.2(e) of the Act defines “forest offence” as meaning an offence
W.P(C).No.29041 of 2009
-: 3 :-
punishable under the Act and any rules made thereunder. It is
pointed out that the act of petitioner in cutting down trees from
the patta land which is part of the reserve forest as it is not
disreserved amounted to offence punishable under Sec.27(1)(e)
(iii) of the Act though not it is not so specifically stated in Ext.P1,
seizure report. It is argued by the learned Special Government
Pleader that the matter is under investigation. Learned Special
Government Pleader has also placed reliance on the decision of
the Supreme Court in T. N Godavarman Thirumulkpad Vs.
Union of India and Ors. (AIR 1997 SC 1228) and the
observations in paragraph 4.
3. It is true that Ext.P1, Form-I report does not mention
what exactly is the offence if any committed. In column No.1
dealing with nature of the offence, there is only reference to the
Rule referred to above under Sec.76 of the Act. It is stated in
Ext.P1 that petitioner committed an offence. But I must bear in
mind that Ext.P1 is not a final report after investigation it is only
a preliminary forest offence seizure report.
4. I am not persuaded to think that merely because the
exact provision of law allegedly violated is not mentioned in
Ext.P1, that report has to be set aside particularly as the
W.P(C).No.29041 of 2009
-: 4 :-
investigation is on. Petitioner has to await the result of
investigation. If the final report as may be submitted by the
officer concerned does not disclose any offence as petitioner
contends, it may be open to him to challenge the seizure report
as provided under law. I do not therefore find reason to quash
Ext.P1, at this stage.
5. Learned counsel submitted that since the timber has
not been removed from the patta land of petitioner, it causes
much difficulty. Learned counsel referred me to the order passed
by this court on April 7, 2007 where submission of the learned
Special Government Pleader is that the forest official will be
directed to remove the trees to a convenient place is recorded.
It is pointed out by learned counsel for petitioner so far, the said
undertaking has not been complied. Learned Special Government
Pleader submitted that in case timber has not so far been
removed, the same will be removed within two weeks from the
date of receipt of a copy of this judgment. That submission is
recorded. Forest officials shall do so.
6. It is then contended by learned counsel for petitioner
that since the fact of cutting of trees is not disputed by the
petitioner, it does not require much time for investigation, what
W.P(C).No.29041 of 2009
-: 5 :-
is to be investigated is only whether the land is part of reserve
forest or not and hence the forest officials may be directed to
complete investigation and submit final report within a time limit
to be fixed by this court. I do not think that it is proper or
justifiable for this court to fix a time limit for completion of
investigation and submission of final report but, having regard to
the difficulties expressed by petitioner it is only just and proper
that the forest officials concerned, expedited investigation and
further proceedings in the matter. They are directed to do so.
7. With respect to the timber in question (which will be
removed by the forest officials from the patta land as above
stated) the department shall initiate necessary action for its
disposal as provided under law as early as possible.
This petition is closed with the directions made above and
without prejudice to the right of petitioner to challenge the final
report that may be submitted by the forest officials on completion
of investigation.
(THOMAS P JOSEPH, JUDGE)
Sbna/-