Ajeesh S. v. Authorized Officer, Divisional Forest Officer, Ranni, Pathanamthitta & The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 01ST DAY OF OCTOBER 2020 / 9TH ASWINA, 1942** ## **CRP.No.105 OF 2019** **AGAINST THE JUDGMENT IN CMA 21/2017 DATED 04-10-2018 OF DISTRICT COURT, PATHANAMTHITTA** ## **PETITIONER/APPELLANT/RESPONDENT:** **AJEESH.S. AGED 39 YEARS S/O.K M SALIM, PUTHENPURAYIL SALIM MANZIL, CHITTAR.P.O., PATHANAMTHITTA, PIN-689663.** **BY ADVS. SRI.CHERIAN GEE VARGHESE SRI.P.HARIDAS SRI.BIJU HARIHARAN SRI.R.B.BALACHANDRAN SRI.RENJI GEORGE CHERIAN SRI.P.C.SHIJIN SRI.RISHIKESH HARIDAS** ## **RESPONDENT/PETITIONER:** **1 AUTHORIZED OFFICER/ DIVISIONAL FOREST OFFICER, RANNI, PATHANAMTHITTA, PIN-689 672. 2 THE STATE OF KERALA, REPRESENTED BY SPECIAL GOVERNMENT PLEADER (FOREST), HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **R1-2 BY SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)** **THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24.09.2020, THE COURT ON 01.10.2020 PASSED THE FOLLOWING:** C.R.P.No.105/2019 2 ## **R.NARAYANA PISHARADI, J** ************************ C.R.P.No.105 of 2019 -------------------------------------------Dated this the 1[st] day of October, 2020 ## **O R D E R** This revision petition is filed challenging the judgment rendered by the District Court, Pathanamthitta in an appeal filed by the revision petitioner against the order dated 16.03.2017 passed by the Divisional Forest Officer, Ranni under Section 61A of the Kerala Forest Act, 1961 (for short 'the Act'). 2. On 05.07.2016, the forest officials of Chittar Forest Station reached the property in possession of one Valsala and they saw the Anjili tree which was standing in that property being cut and the timber being tied and removed from the spot by using the vehicle KL-62/C-0309, a Joseph Cyril Bambord Excavator (for short 'JCB'). The Anjili tree was allegedly standing in a land notified as reserve forest. A case was registered C.R.P.No.105/2019 3 against the persons responsible for cutting the tree and also the driver of the vehicle. The forest officials seized the timber and the vehicle and produced them before the Divisional Forest Officer, Ranni, the authorised officer, for initiating proceedings under Section 61A of the Act. 3. The Divisional Forest Officer, as per the order dated 16.03.2017, found that the vehicle was used in commission of a forest offence with the knowledge and consent of its owner and ordered that the timber and the vehicle shall be confiscated to government. 4. Challenging the aforesaid order of confiscation of vehicle, the petitioner herein, who is the owner of the JCB, filed an appeal as C.M.A.No.21/2017 before the District Court, Pathanamthitta. Learned District Judge confirmed the order passed by the Divisional Forest Officer and dismissed the appeal. 5. Heard the learned counsel for the revision petitioner and the learned Special Government Pleader for Forests. 6. Learned counsel for the petitioner has mainly raised the following four contentions : (1) The notice issued to the C.R.P.No.105/2019 4 petitioner under Section 61B of the Act was cryptic and it did not contain necessary particulars. (2) The Divisional Forest Officer did not give copies of necessary documents to the petitioner (3) The petitioner was not given sufficient opportunity by the Divisional Forest Officer to raise his contentions. (4) Learned District Judge has not properly considered the above contentions raised in the appeal by the petitioner. 7. Regarding the contention that notice issued to the petitioner was cryptic, in the impugned judgment, the learned District Judge has stated as follows: “ _At this juncture, it is very pertinent to go through Section 61B notices issued in this case. From the impugned order, it is clear that Section 61B notices were issued to the appellant and others repeatedly. The first notice is dated 01.09.2016. The second one is dated 08.09.2016. The third one is dated 24.09.2016. Then again notice was issued on 24.10.2016 and then again issued notice on 09.12.2016. Copy of the said five notices are seen in sheet No.181, sheet No.205, sheet No.229, sheet No.283 and sheet No.333 of the case records maintained in the office of the Authorized Officer._ C.R.P.No.105/2019 5 _The said dates are mentioned in the impugned order passed by the Authorized Officer. In all the said notices, the details of the offence including the dates, location and registration number of the JCB are mentioned. It is also specifically stated in Section 61B notices that they have to file a written statement in writing. In the notice issued on 24.09.2016 opportunity regarding personal hearing is also mentioned. It is also to be noted that appellant filed Writ OP before the Hon'ble High Court of Kerala for getting release of the vehicle and as per the direction of the Hon'ble High Court, he filed a representation before the Authorized Officer and the same was rejected by the Authorized Officer stating that confiscation proceedings have been initiated in the matter. From that itself, it can safely be inferred that the appellant obtained details of the case.”_ 8. Inspite of the fact that the petitioner produced some other documents as Annexures 1 to 3 in the revision petition, he did not take care to produce copy of atleast one of the several notices issued to him by the authorised officer under Section 61B of the Act. Therefore, in the light of the above observations made by the learned District Judge in the impugned judgment, C.R.P.No.105/2019 6 this Court is not inclined to accept the contention that the notice issued to the petitioner under Section 61B of the Act was cryptic and that it did not contain necessary particulars. 9. Regarding the second contention as to non-furnishing of copies of documents to the petitioner by the authorised officer, it is to be noted that the Divisional Forest Officer is not bound to furnish copies of documents required by the petitioner. The decision referred to by the learned counsel for the petitioner itself is an authority for this proposition. In **Abraham @ Titus v. State of Kerala : 2014 (2) KHC 392 : 2014 (3) KLT 187** , which is referred to by the learned counsel for the petitioner, it is stated as follows: _“It is not necessary, disclosure necessarily involves supply of the materials or testimony of the witnesses along with the show-cause notice. A person may be allowed to inspect the file and take notes. Whatever mode is used, the fundamental principle remains that nothing should be used against the person which has not been brought to his notice”._ (emphasis supplied). C.R.P.No.105/2019 7 Therefore, the petitioner has no absolute right to get copies of documents from the Divisional Forest Officer. The petitioner or his counsel can inspect the file and take notes in the presence of the Divisional Forest Officer or in the presence of an officer authorised by the Divisional Forest Officer. 10. There is also no merit in the contention that the petitioner was not given effective opportunity to raise his contentions before the Divisional Forest Officer. The order passed by the Divisional Forest Officer discloses the fact that several opportunities were granted to the petitioner to produce documents and to raise his contentions and for personal hearing but the petitioner or his counsel made applications for adjournment of the hearing. In the impugned judgment, the learned District Judge has stated as follows: _“The prescribed notice mentioned in Section 61B of the Kerala Forest Act was issued to the appellant/registered owner of the vehicle and other four persons involved in the incident. On 01-09-2016 the appellant was reluctant to accept the notice. Hence the notice was affixed on his_ C.R.P.No.105/2019 8 _residence on 07-09-2016. Subsequently party Nos.2 and 5 in the said notice filed an application through Adv.K.Harikumar on 08-09-2016 seeking more time. Hence again Section 61B notices were issued to all the parties directing them to appear before the Authorized Officer on 24-09-2016 and they again sought time on 14-10-2016 through Adv.Navin M.Easow (counsel for the appellant) and the matter was adjourned to 15-11-2016. On 15-11-2016 also, parties were not appeared before the Authorized Officer in person and they again sought time and it was adjourned to 17-01-2017. On that date also, nobody represented before the Authorized Officer, but sought an adjournment through their agent and again the matter was adjourned to 15-02-2017. Again notice u/s.61B was issued on 15-02-2017 directing the parties to appear before the Authorized Officer on 16-03-2017. Even after that the appellant and other persons involved in the incident had not produced any documents or appeared before the Authorized Officer. Subsequently, the Authorized Officer confiscated the vehicle and the Anjili logs involved in this case as per the impugned order dated 16-03-2017”._ Therefore, there is no merit in the contention that the petitioner C.R.P.No.105/2019 9 was not given sufficient opportunity to raise his contentions. He was given more than sufficient opportunity but he did not avail it. 11. The fourth contention raised by the learned counsel for the petitioner has also no force in it. The passages extracted earlier from the impugned judgment of the learned District Judge are sufficient to show that the appellate authority has considered the contentions raised by the petitioner in the appeal in a proper manner. 12. Lastly, in order to save the battle which would be lost on all the aforesaid grounds, learned counsel for the petitioner submitted that the JCB is worth lakhs of rupees and the petitioner may be granted one more opportunity to raise his contentions before the Divisional Forest Officer. Considering the fact that the matter relates to confiscation of a vehicle worth lakhs of rupees, I am inclined to accept the above prayer made by the learned counsel for the petitioner. In order to give another opportunity to the petitioner to appear before the Divisional Forest Officer and to raise his contentions, the impugned judgment in the appeal and also the order passed by C.R.P.No.105/2019 10 the Divisional Forest Officer have to be set aside and the matter has to be remanded to the authorised officer for fresh consideration. 13. Consequently, the revision petition is disposed of as follows: The impugned judgment of the District Court, Pathanamthitta is set aside. The order dated 16.03.2017 of the Divisional Forest Officer, as far as it relates to confiscation of the - - vehicle KL 62/C 0309 alone, is also set aside. The petitioner shall appear before the Divisional Forest Officer, Ranni within a period of one month from today and produce a certified copy of this order before him. Thereafter, the Divisional Forest Officer shall fix a date for hearing the matter, which shall be a date beyond one month from the date of appearance of the petitioner before him. During the period at least two weeks before the date of hearing so fixed, the petitioner is at liberty to make written application before the Divisional Forest Officer for inspection of the relevant file/documents. If any such application is made, the petitioner shall be permitted to inspect the relevant file/documents and to take notes in the presence of the Divisional C.R.P.No.105/2019 11 Forest Officer or an officer authorised by the Divisional Forest Officer in that regard. If the petitioner does not appear before him within the time fixed by this Court, the Divisional Forest Officer shall proceed further with the matter relating to confiscation of the vehicle and pass appropriate orders. All interlocutory applications pending are closed/dismissed. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr C.R.P.No.105/2019 12 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE 1 TRUE COPY OF THE ORDER OF ASSIGNMENT DATED 7.7.16.** **ANNEXURE 2 TRUE COPY OF THE SURVEY PLAN OF THE PROPERTY.** **ANNEXURE 3 TRUE COPY OF THE POSSESSION CERTIFICATE OF THE VILLAGE OFFICER DATED 12.7.16.** ## **RESPONDENT'S EXHIBITS :** **ANNEXURE R1(a) : TRUE COPY OF LETTER NO.3-5042/16 DATED 19.09.2016** **ANNEXURE R1(b) : TRUE COPY OF THE LETTER DATED 20.09.2016.** **ANNEXURE 4 : TRUE COPY OF THE ORDER NO.C3-5042/2016 OF CONFISCATION OF THE DIVISIONAL FOREST OFFICER DATED 16.03.2017.** True Copy PS to Judge