High Court Kerala High Court

C.K.Mohammed Ali vs The State Of Kerala Rep. By The on 16 July, 2007

Kerala High Court
C.K.Mohammed Ali vs The State Of Kerala Rep. By The on 16 July, 2007
       

  

  

 
 
  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.

                      ---------------------------

                            C.R.P.No.1845 OF 2003

                     ----------------------------

             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.