High Court Kerala High Court

Dr.Jikku Phillip vs Divisional Forest Officer And … on 23 March, 2010

Kerala High Court
Dr.Jikku Phillip vs Divisional Forest Officer And … on 23 March, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 9643 of 2010(E)



1. DR.JIKKU PHILLIP
                      ...  Petitioner

                        Vs

1. DIVISIONAL FOREST OFFICER AND ANOTHER
                       ...       Respondent

                For Petitioner  :SRI.A.S.RAJENDRAN NAIR

                For Respondent  : No Appearance

The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR

 Dated :23/03/2010

 O R D E R
                T.R.RAMACHANDRAN NAIR, J.
               ----------------------------------------------
                   W.P.(C)No.9643 OF 2010
             -----------------------------------------------------
           DATED THIS THE 23rd DAY OF MARCH, 2010

                           J U D G M E N T

The petitioner is the owner in possession of 2.4281 hectors

of land in Survey No.243 of Periyar Village. 21 trees of different

varieties were sought to be cut and removed by the petitioner for

which the petitioner filed an application for sanction under the

Kerala Promotion to Tree Growth in Non Forest Areas Act, 2005.

The petitioner waited for some days. On the presumption that

sanction has been ordered, the petitioner has already cut down

the trees. This has resulted in the Forest Department, registering

a crime as Crime No.4/2010 under Section 6(3) of the Kerala

Promotion of Tree Growth in Non Forest Act, 2005. Exhibit P4 is

the mahazar prepared in the said case. It is stated that the

report has been forwarded to the Chief Judicial Magistrate,

Peermade. Seeking release of the timber, the petitioner moved

an application before the learned Magistrate, which according to

the petitioner was not allowed. It is the case of the petitioner

that the same is not considered, in the light of Section 10 of the

W.P.(C)No.9643/10 -2-

Act, which confers a power on the Divisional Forest Officer to

release the same on execution of a bond for production of the

property so seized if and when so required. The petitioner is

relying upon the decision of this Court in Sukumaran v. State

of Kerala (2010(1) KLT 546), produced as Exhibit P6 herein.

Therein, this Court held that:

“18. S.11 provides that upon receipt of the report

under Cl.(a) of Sub-s.(3) of S.9, the Magistrate

shall take such measures as may be necessary,

for the trial of the accused and disposal of the

timber, tool, rope, chain or other article or any

boat; vehicle or animal seized along with it,

according to law. S.13 provides for the

cognizance of the offence. Under the Section, an

offence punishable under this Act shall be tried

before a court of Judicial Magistrate of the First

Class having jurisdiction. S.12 provides that no

prosecution shall be instituted against any person

without the sanction of the Divisional Forest

W.P.(C)No.9643/10 -3-

Officer. The Act does not provide for

confiscation”.

2. In the light of the above, there is a jurisdiction for the

Divisional Forest Officer to consider the application. There will be

a direction to the Divisional Forest Officer to consider Exhibit P5

and take a decision thereon within a period of 10 days from the

date or receipt of a copy of this judgment, in the light of the

power conferred under Section 10 of the Act.

The Writ Petition is disposed of as above.

T.R.RAMACHANDRAN NAIR,
JUDGE

dsn