{"id":136607,"date":"2007-07-16T00:00:00","date_gmt":"2007-07-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-k-mohammed-ali-vs-the-state-of-kerala-rep-by-the-on-16-july-2007"},"modified":"2016-05-17T12:52:24","modified_gmt":"2016-05-17T07:22:24","slug":"c-k-mohammed-ali-vs-the-state-of-kerala-rep-by-the-on-16-july-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-k-mohammed-ali-vs-the-state-of-kerala-rep-by-the-on-16-july-2007","title":{"rendered":"C.K.Mohammed Ali vs The State Of Kerala Rep. By The on 16 July, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
C.K.Mohammed Ali vs The State Of Kerala Rep. By The on 16 July, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRP No. 1845 of 2003()\n\n\n1. C.K.MOHAMMED ALI, S\/O.HAMZA, RESIDING\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. THE STATE OF KERALA REP. BY THE\n                       ...       Respondent\n\n2. THE DIVISIONAL FOREST OFFICER,\n\n                For Petitioner  :SRI.V.CHITAMBARESH\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice P.R.RAMAN\n\n Dated :16\/07\/2007\n\n O R D E R\n                                    P.R.RAMAN J.\n\n                      ---------------------------\n\n                            C.R.P.No.1845 OF 2003\n\n                     ----------------------------\n\n             Dated this the 16th day of July, 2007\n\n\n\n                                       O R D E R\n<\/pre>\n
       Petitioner   is   aggrieved   by   the   order   passed   by   the   District   Court,<\/p>\n
Palakkad   dismissing   the   appeal,   C.M.A.No.67\/2000   confirming   the   order<\/p>\n
passed by the Divisional Forest  Officer in Proceedings No.A2-2177\/98, by<\/p>\n
which the Jeep bearing Regn. No.KRP 4930 belonging to the petitioner was<\/p>\n
found involved in a forest offence and was ordered to be seized.<\/p>\n
       2. On 5\/4\/1998  the Section Forester while  inspecting the forest land,<\/p>\n
known as “Chemparathimala” and while reaching the place “Manchakkallu”<\/p>\n
which   is   closed   to   “Nellaya   Cherplassery”   road,   found   that   two   persons<\/p>\n
were carrying timber pieces from the above forest area and loading it into a<\/p>\n
jeep KRP 4930 which was put very close to adjacent Government forest at<\/p>\n
the above road.  It was also found that a gang of 11 persons were engaged in<\/p>\n
cutting   trees   and   collecting   timber   and   firewood   trespassing   into   the<\/p>\n
Government   forest   area.     The   Forest   Officer   accordingly   detained   the<\/p>\n
persons  and  jeep. It was found  that  the 3 acres  of Government forest area<\/p>\n
was   cleared   by   these   persons   by   cutting   the   trees   and   clearing   the   under<\/p>\n
                                              -2-<\/span><\/p>\n
C.R.P.NO. 1845\/2003<\/p>\n
growth illegally. Among the trees so cut includes 95 nos. of Teakwood, 1<\/p>\n
no.   of   Rosewood,   1   no.   of   Sandalwood,   1   no.   of   Venga   tree,   8   nos.   of<\/p>\n
Mullankayani, 12 nos. Vatta, 7 nos. of Manjapavatta, 2 nos. of Pathiri, 4<\/p>\n
nos. of Idinjal, 6 nos. of Vaha, 3 nos. of Kanjiram, 3 nos. of Mullilam, 1<\/p>\n
no. of Sindoram (total 144 nos.)  and Teak poles 250 nos. (below 15 cm.<\/p>\n
in girth).   About 1 MT of firewood collected from above felled trees.   It<\/p>\n
was   found   that   the   above   11   persons   having   trespassed   into   the<\/p>\n
Government forest for encroaching forest area and illicitly felling of trees<\/p>\n
and   clearing   under   growth,   were   arrested   and   the   jeep   was   also   seized<\/p>\n
after preparing a mahazar. Petitioner is one among the several persons so<\/p>\n
arrested.  An offence was booked in Ottapalam Range as OR-10\/98 under<\/p>\n
Section 27(i)(d), (ii), (iii) (iv) 52 (i) and Section 61A of the Kerala Forest<\/p>\n
Act.     As   per   the   statement   of   allegation,   the   3rd   accused   Sebastian,<\/p>\n
Surveyor   of   the   Forest   Mini   Survey,   under   the   Assistant   Director   of<\/p>\n
Survey,   Forest   Mini   Survey,   Thiruvananthapuram   with   his   active<\/p>\n
collusion  with the arrested  accused committed this  offence. The arrested<\/p>\n
persons were produced before the Judicial First Class Magistrate’s Court<\/p>\n
on 6\/4\/1998 and they were remanded to sub jail. The jeep, which was used<\/p>\n
for   attempted   transport   of   Thondy   materials,   was   seized   and   produced<\/p>\n
before   the   Divisional   Forest   Officer,   Palakkad.     In   the   meanwhile,   an<\/p>\n
enquiry  report was submitted and a detailed investigation was conducted<\/p>\n
in   the   matter.     All   the   accused   persons   including   the   petitioner   gave<\/p>\n
                                            -3-<\/span><\/p>\n
C.R.P.NO. 1845\/2003<\/p>\n
statement.   In   the   statement   made   by   the   petitioner,   he   admitted   the<\/p>\n
offence.  He stated that he along with Kunhahammed (Accused No.2) with<\/p>\n
8 workers were cleared about 3 acres of forest area  and he had also prior<\/p>\n
knowledge   that   the   area   is   a   Government   forest   and   this   offence   was<\/p>\n
committed with the connivance of the Surveyor, who rendered all help.  It<\/p>\n
is also admitted that he is the owner of the jeep seized   and the jeep was<\/p>\n
brought to the spot in order to transport the firewood collected  from the<\/p>\n
trees.   The   other   accused   persons   also   gave   similar   statements   admitting<\/p>\n
the guilt. In the statement given by the 2nd Accused, it was revealed that<\/p>\n
Mohammed   and   Pokker   had   given   about   6   1\/2   acres   of   land   near<\/p>\n
Manjakkal   area   of   Pattambi-Cherplassery   road   to   him   on   a   power   of<\/p>\n
attorney about 5 months ago, which is the land under the possession of the<\/p>\n
Government.   Since it is likely to take some time to settle the dispute, it<\/p>\n
was   decided   to   overcome   the   delay   by   a   shortcut   method.     It   was<\/p>\n
accordingly that he met Sri Sebastian, the Surveyor of Forest Mini Survey<\/p>\n
through   a   mediator.     It   appears     an   amount   of   Rs.1.5   lakhs     towards<\/p>\n
expenditure  was  claimed  which  was   subsequently  reduced   to  1.20  lakhs<\/p>\n
and the Surveyor demanded   Rs.60,000\/- as advance, that was agreed to.<\/p>\n
On the next day an amount of Rs.60,000\/- was entrusted to him and it was<\/p>\n
decided to pay the balance amount on clearing all the papers and records<\/p>\n
by   the   Surveyor.   A   further   amount   of   Rs.20,000\/-   also   was   paid   on<\/p>\n
2\/4\/1998.     It   was   informed   by   the   Surveyor   that   since   the   records   are<\/p>\n
                                              -4-<\/span><\/p>\n
C.R.P.NO. 1845\/2003<\/p>\n
already ready, instructions were given to cut the trees and clear the areas<\/p>\n
by   retaining   cashew   and   jack   trees   if   any.     The   Surveyor   also   directed<\/p>\n
them to  burn  the  cleared  area  properly.   Tree  felling  started  on the  area<\/p>\n
and   the   Surveyor   visited   the   spot   on   the   first   day   and   on   his   demand,<\/p>\n
Rs.20,000\/- was again given to him.  Before felling of the trees in the said<\/p>\n
area, the Surveyor had demarcated about 6 1\/2 acres by fixing new survey<\/p>\n
stones   out   of   which   about   3   acres   were   already   cleared   and   they   were<\/p>\n
caught  by the forest  officials  while attempting  to remove the timber and<\/p>\n
firewood   collected   from   the   said   area.                     This   statement   of<\/p>\n
Kunhimohammed was fully endorsed by the mediator Narangakunju alias<\/p>\n
Kunhumohammed, son of Unnimammu.  From the file it is  disclosed that<\/p>\n
there   were   previously   3   OAs   in   respect   of   6.58   acres   of   land.     O.A.<\/p>\n
Nos.19\/92, 83\/92 and 85\/92 an extent of 1.58  acres, 3 acres  and 2 acres<\/p>\n
respectively in Sy.No.75\/12 and 73\/3. These O.As were dismissed by the<\/p>\n
Forest Tribunal by a common order dated 19\/91995.   It is stated that the<\/p>\n
entire area is in exclusive possession of the Forest Department.  After the<\/p>\n
order   of   the   Tribunal,   Pokker,  the   petitioner   in  O.A.No.83\/92,  had   filed<\/p>\n
O.S.No.258\/96 before the Sub Court, Ottapalam claiming 3 acres of land,<\/p>\n
the disputed  property in  O.A.No.83\/92.    It  is stated  that since the Forest<\/p>\n
Tribunal   has   dismissed   the   case   and   the   land   being   a   forest,   the   act<\/p>\n
committed by the petitioner herein in trespassing into the forest area and<\/p>\n
cutting   trees   is   a   clear   case   of   forest   offence   and   therefore   the   vehicle<\/p>\n
                                            -5-<\/span><\/p>\n
C.R.P.NO. 1845\/2003<\/p>\n
attempted to carry wood is liable to be confiscated.<\/p>\n
       3.   The   petitioner   contended   that   on   5\/4\/1998   he   along   with   his<\/p>\n
driver was coming to Nellaya from Cherplassery  in his Jeep 4930 and on<\/p>\n
reaching Manjakkallu, they found two forest guards standing on the road<\/p>\n
along   with   Kunhahammed   (Accused   No.2).     Since   Kunhahammed   was<\/p>\n
related   to   the   petitioner,   he   stopped   the   jeep   and   enquired   about   the<\/p>\n
presence.     Kunhahammed   is   stated   to   have   told   that   the   forest   guards<\/p>\n
wanted a lift to the forest office and  accordingly lift was allowed and on<\/p>\n
reaching   forest   office,   Kulappully,   they   changed   their   attitude   and<\/p>\n
detained   the   petitioner   along   with   others   and   produced   before   the<\/p>\n
Magistrate’s   Court.   Petitioner   denied   his   involvement   in   any   forest<\/p>\n
offence.\n<\/p>\n<\/p>\n
       4.   The   vehicle   involved   in   this   case   has   been   released   to   the<\/p>\n
petitioner on furnishing a bank guarantee based on an order passed by this<\/p>\n
Court.   Thereafter, the case was tried and finally he was found guilty of<\/p>\n
the   offence.     The   Divisional   Forest   Officer   has   followed   the   procedure<\/p>\n
laid down by law before holding that the petitioner’s vehicle is involved in<\/p>\n
the   offence.   Show   cause   notices   were   issued   to   all   the   accused   persons<\/p>\n
including   the   petitioner.   Accused   1,   2,   9   and   12   and   two   witness   were<\/p>\n
examined.     Petitioner   produced   a   partition   deed   No.2469\/90   and   also<\/p>\n
placed   reliance   on   the   injunction   order   passed   by   the   civil   court   in<\/p>\n
O.S.No.2258\/96   in   respect   of   5.21   acres   of   land   comprised   in<\/p>\n
                                            -6-<\/span><\/p>\n
C.R.P.NO. 1845\/2003<\/p>\n
Sy.Nos.75\/1,   75\/2   and   73\/3.   It   appears   that   the   interim   orders     if   any<\/p>\n
passed by the Sub Court was not however produced before the Divisional<\/p>\n
Forest Officer, in spite of time granted to the petitioner.  He proceeded to<\/p>\n
discuss the evidence on record and based on the statement already filed by<\/p>\n
the respective parties and in the attendant circumstances, he came to the<\/p>\n
irresistible conclusion that it is undoubtedly established that the jeep KRP<\/p>\n
4930 was used for commitment of forest offence as described  and it was<\/p>\n
with the full knowledge  and consent of the owner and his driver. Besides<\/p>\n
confiscating   the   vehicle,   separate   proceedings   were   also   taken   for<\/p>\n
prosecution  under Section    27 read with Section 62 of the Kerala Forest<\/p>\n
Act.     This   order   was   appealed   to   the   District   Court.   The   court   below<\/p>\n
considered the legality or otherwise of the order passed by the Divisional<\/p>\n
Forest Officer and whether any ground is made out for interference. In this<\/p>\n
regard,   the   statement   given   by   the   parties   before   the   Divisional   Forest<\/p>\n
Officer was looked into by the court below.   The court below found that<\/p>\n
there is nothing to disbelieve the genuineness of the statement alleged to<\/p>\n
have been made by the appellant (petitioner herein) especially in the light<\/p>\n
of   the   assurance   by   one   Sebastian,   who   is   working   as   Surveyor   in   the<\/p>\n
Forest Mini Survey, Thiruvananthapuram.   The court  below did not find<\/p>\n
in the factual situation any reason to interfere with the order  passed by the<\/p>\n
Divisional Forest Officer.  It is against this order that the present C.R.P. is<\/p>\n
filed.\n<\/p>\n
\n                                             -7-<\/span><\/p>\n
C.R.P.NO. 1845\/2003<\/p>\n
       5.   The   learned   counsel   Sri   V.   Chitambaresh   appearing   for   the<\/p>\n
petitioner contended that in view of the order of injunction passed by the<\/p>\n
civil court, it must be presumed that it is not a forest land and hence no<\/p>\n
forest   offence   as   alleged   is   committed.     He   also   placed   reliance   on   the<\/p>\n
order   of   the   Forest   Tribunal   in   O.A.Nos.19\/92,   83\/93   and   85\/92.     As<\/p>\n
rightly   found   by   the   Divisional   Forest   Officer,   the   above   O.As.   were<\/p>\n
dismissed by the Forest Tribunal.  It is not shown before me that there was<\/p>\n
any appeal filed before this Court reversing  the  said order. On the  other<\/p>\n
hand,  an attempt was made to approach the civil court to obtain an order<\/p>\n
of injunction.   Merely because there is an order of injunction, it does not<\/p>\n
per  se  would  show  that  the  land  from where  the  trees  were cut  is  not  a<\/p>\n
forest land. The only authority competent to decide as to whether this is a<\/p>\n
forest land or not is the Forest Tribunal. In the absence of any order of that<\/p>\n
Tribunal holding that the area from where the trees were cut is not a forest<\/p>\n
area,   the   petitioner   cannot   succeed.     On   the   other   hand,     the   Divisional<\/p>\n
Forest   Officer   reached   a   conclusion   that   they   knew   that   this   is   a<\/p>\n
Government Forest Land and with the connivance of an officer that they<\/p>\n
had committed the offence. The only question that arise for consideration<\/p>\n
in this revision is as to whether in such circumstances, the order passed by<\/p>\n
the   District   Court   suffers   from   any   error   or   illegality   warranting<\/p>\n
interference   of   this   Court   under   Section   115   of   the   C.P.C.   I   have   in<\/p>\n
extenso discussed the matter and from the factual situation and also from<\/p>\n
                                            -8-<\/span><\/p>\n
C.R.P.NO. 1845\/2003<\/p>\n
the   evidence   on   record   already   appreciated   by  two   authorities,   I   do   not<\/p>\n
find that there is any illegality committed by the court below warranting<\/p>\n
interference of this Court under Section 115 of the C.P.C.<\/p>\n
        Accordingly, C.R.P. is dismissed.\n<\/p>\n<\/p>\n
                                                                         P.R.RAMAN,<\/p>\n
                                                 Judge.\n<\/p>\n
kcv.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-136607","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nC.K.Mohammed Ali vs The State Of Kerala Rep. By The on 16 July, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/c-k-mohammed-ali-vs-the-state-of-kerala-rep-by-the-on-16-july-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"C.K.Mohammed Ali vs The State Of Kerala Rep. 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