Aju Abraham v Divisional Forest Officer, Kothamangalam

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 WP(C).No. 26602 of 2007(P) -------------------------CMA.1025/2002 of VI ADDL.DISTRICT COURT, ERNAKULAM .................... PETITIONER(S): --------------- AJU ABRAHAM, M/S.DEEPA PAINTS,ERNAKULAM. BY ADV. SRI.JOHN K.GEORGE RESPONDENT(S): --------------- THE DIVISIONAL FOREST OFFICER, KOTHAMANGALAM. SPECIAL GOVERNMENT PLEADER (FOREST) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## S.S.SATHEESACHANDRAN, J ------------------------------------W.P.(C) No.26602 OF 2007 -------------------------------Dated this the 5[th] day of March 2010 ## JUDGMENT The writ petition is filed seeking the following reliefs. i) _Call for the records relating to Ext.P4 and to quash them by issuing a writ of certiorari._ _ii) Issue a writ of certiorari quashing Ext.P3 order passed by the respondent._ _iii) Issue a direction to the respondent to release the vehicle KL.7/C-4293 to the petitioner forthwith._ _iv) To issue any such other writ, order or direction this Hon'ble Court deem fit in the nature and circumstances of this case._ 2. Petitioner is the owner of a mini lorry bearing registration No. 7/C.4293 which was ordered to be confiscated by the respondent as involved in a forest offence of illicit transportation of forest produce from a reserve forest. Forest officials intercepted the vehicle on 04.07.1992 at Ayyankavu in Kothamangalam while teak woods were illicitly transported in that vehicle. The driver and also another travelling in the vehicle, for whom the teak woods were being transported, were apprehended, and the forest produce and the vehicle were seized into custody. Investigation of the case registered over the illicit transportation of the teak wood disclosed that two teak trees had been cut down from the reserve forest in Malayattoor. Stumps of the two trees cut Page numbers W.P.(C) No.26602 OF 2007 down were traced out and verification with the teak logs transported in the vehicle revealed that they related to the stumps detected. The records being placed before the authorised forest officer and he being satisfied that confiscation proceedings over the vehicle involved in the illicit transportation of the teak woods, a forest produce, was warranted proceedings under Section 61A of the Kerala Forest Act were initiated. That proceeding earlier gave rise to Ext.P1 confiscation order of the vehicle. P1 order was challenged in appeal as provided under Section 61D of the Forest Act before the District Court. The learned District Judge set aside Ext.P1 order and remitted the case for fresh consideration and disposal in accordance with law after providing an opportunity to the appellant, the owner of the vehicle to adduce further evidence and to cross examine the witnesses examined in the case. Pursuant to such remission, the respondent, authorised forest officer, again passed Ext.P3 confiscation order. Ext.P3 confiscation order was challenged by the owner, the writ petitioner, preferring an appeal before the District Court. The learned District Judge confirming the order of confiscation dismissed the appeal vide Ext.P4 judgment. Propriety and correctness of Ext.P3 order as confirmed in Ext.P4 judgment is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. Page numbers W.P.(C) No.26602 OF 2007 3. I heard the learned counsel for the petitioner and also the learned Special Government Pleader (Forest). The main grounds canvassed by the learned counsel for the petitioner, owner of the vehicle, are that the respondent, authorised forest officer, failed to comply with the directions in Ext.P2 judgment in as much as opportunity was not provided to the petitioner to cross examine the most crucial and material witnesses, the driver and also the person who had engaged the vehicle for transporting the teak logs in the vehicle. Those two witnesses who were examined in the confiscation proceedings were not made available for cross examination is the basis of the challenge canvassed. The next ground canvassed was that the entire evidence and also hearing were conducted by one forest officer, but Ext.P3 order was passed eleven months later by his successor without hearing the petitioner again and that has caused prejudice to him. In effect opportunity of hearing was denied to the petitioner to substantiate his case why the vehicle should not be confiscated is the grievance espoused by the learned counsel. Lastly it is contended by the counsel that the challenge against Ext.P3 confiscation order by way of an appeal under Section 61D was entertained and heard by an Additional District Judge and not by a District Judge who is shown as the competent authority under Section 61D of the Forest Act. According to the learned counsel, the District Judge as persona Page numbers W.P.(C) No.26602 OF 2007 designata is empowered under Section 61D to entertain and dispose an appeal and in doing so he is not exercising his powers as a District Court. So much so, Ext.P4 judgment rendered by the Additional District Judge was one without jurisdiction, and therefore, the judgment is nonest is the submission of the counsel urging for setting aside Ext.P4 judgment and remitting the case for hearing the appeal afresh by the District Judge. Countering the challenges raised against Ext.P3 confiscation order the learned Special Government Pleader (Forest) relying on **“ Joseph v Authorised officer” (1993(1) KLT 212)** contended that no party has a right to cross examine any confiscation proceeding under Section 61A of the Forest Act and so much so, the challenge raised that opportunity was denied to cross examine two witnesses, the driver and the person who had engaged the vehicle for transportation of the forest produce has no significance. It is further submitted that with considerable difficulty the authorised officer had secured the presence of those two witnesses and made them available for cross examination on the hearing date fixed. But, on that day, the petitioner,owner, and his counsel remained absent. In effect, they did not avail the opportunity provided by the authorised officer is the submission of the learned Special Government Pleader (Forest). It is further submitted, pursuant to securing their presence as indicated above, those two witnesses remained scarce and efforts Page numbers W.P.(C) No.26602 OF 2007 made to secure their presence later were not fruitful. There was substantial compliance of the direction in Ext.P2 remand judgment in securing the presence of those witnesses and making them available for cross examination and it was only on account of the fault of the owner of the vehicle that they could not be cross examined is the submission of the learned Special Government Pleader (Forest). So far as the challenge canvassed that the authorised officer who recorded the evidence and heard the counsel for the petitioner did not dispose the case, but, it was done only by his successor, it is submitted that in proceedings covered by Section 61A of the Forest Act, no party can insist for hearing and disposal by the same authorised officer. If that be permitted, then confiscation proceedings will become totally impracticable. In the absence of substantial injury being caused and that being established by showing relevant circumstances connected with the case, no party in a confiscation proceeding can impeach the order passed by the successor authorised officer is the submission of the learned Special Government Pleader (Forest). Refuting the argument raised that the District Judge is exercising jurisdiction as a persona designata in hearing an appeal under Section 61D of the Forest Act, the learned Special Government Pleader (Forest) placing reliance on “ **“Varkey Abraham v District Judge” (1994(1) KLT 580)** and **“Deputy Conservator of Forests v Sarojini” (1981** Page numbers W.P.(C) No.26602 OF 2007 **KLT 179)** contended that the District Judge is exercising power under the above Section as a civil court and the judgment rendered in such appeal is that of a civil court. He is not a persona designata, but, a civil court while he entertains an appeal under Section 61D of the Forest Act, submits the learned Special Government Pleader (Forest). 4. I have considered the rival submissions of the counsel on both sides with reference to Ext.P3 confiscation order and Ext.P4 judgment rendered by the District Judge confirming that order. Perusing Ext.P4 judgment passed by the learned Additional District Judge, it is seen that the petitioner, owner of the lorry, had lodged a complaint before the police imputing allegations against the driver for making use of the vehicle for illicit transportation of forest produce which resulted in seizure of the vehicle with such forest produce by the forest officials. Complaint so filed by the owner, no doubt, leaves no room for any ground that the vehicle had been used for illicit transportation of forest produce from a reserve forest as imputed by the forest officials which had lead to initiation of confiscation proceedings over the vehicle under Section 61A of the Forest Act. In confiscation proceedings where the involvement of the vehicle in the commission of the forest offence is established, the burden shifts wholly on the owner to prove by convincing evidence that the vehicle had been used without his knowledge or Page numbers W.P.(C) No.26602 OF 2007 connivance and that he had taken all reasonable and necessary precautions against the use of such vehicle for any illegal purpose. There is no case for the owner, petitioner in the present case that he had let in any material to discharge the burden so cast on him under law as mandated under sub Section 2 of Section 61B of the Kerala Forest Act. The learned District Judge after reappreciating the materials had concurred with the finding arrived by the authorised officer that the vehicle which had been used for illicit transportation of forest produce was liable to be confiscated. Concurrent finding so entered is impeached on the ground that there was denial of opportunity in as much as two witnesses were not made available for cross examination . In that context, it is relevant to take note of sub Section 1 of Section 61B as to the scope of enquiry in a confiscation proceeding. A show cause notice informing the grounds for confiscation has to be issued to the owner of the vehicle when confiscation of his vehicle is contemplated for its involvement in a forest offence. He should be then given an opportunity to submit a representation in writing as against the grounds of confiscation providing him reasonable time for making such representation. Then the the other requirement in the enquiry is providing reasonable opportunity to the person proceededof being heard in the matter. What is the opportunity to be extended to the owner is the crucial question to be considered. Page numbers W.P.(C) No.26602 OF 2007 Opportunity of being heard contemplated under sub Section (1)(C) of Section 61B has to be examined with reference to sub Section (2) of that section which cast a burden on the owner to establish that the vehicle had been used without his knowledge or connivance and that he had taken all reasonable and necessary precaution against the use of the vehicle in any illegal purpose, in the context, in a forest offence. In a case where the owner has practically conceded that the vehicle was involved in the commission of the forest offence for the illicit transportation of the forest produce and the burden is statutorily cast upon him to prove the exception provided to avoid confiscation, then it is his duty to secure and produce the witnesses and examine them to substantiate his entitlement for the exemption from confiscation. Further more, the driver in the present case is none other than the servant of the owner. In effect, the act committed by him is the act of the principal, that of the owner. Petitioner, the owner of the vehicle has no case that the person who was driving the vehicle at the relevant time was not the driver employed by him. As already indicated, he has filed a complaint against the driver alleging that the said driver had used the vehicle for illicit transportation of forest produce. When that be the case, the burden was on the owner to prove that it had been done without his knowledge and connivance and that he had taken all reasonable precautions Page numbers W.P.(C) No.26602 OF 2007 against the use of the vehicle for such purposes. Failure of the authorised officer to secure the presence of the driver to enable the petitioner to cross examine him in the given circumstance is only to be noticed for its rejection. Then also I find considerable force in the submission of the learned Special Government Pleader (Forest) that the presence of both the witnesses was secured but it was not availed as the petitioner and his counsel remained absent on the hearing date. The authorised officer cannot be expected to cause production of those witnesses on every hearing date. There was substantial compliance of the direction given in Ext.P2 judgment in producing them at least on one of the dates fixed for hearing. So much so, that ground raised to challenge Ext.P3 order and Ext.P4 judgment is unworthy of any merit. Order was passed by the successor of the authorised officer who recorded the evidence and heard the matter also does not impress me. How far it has caused prejudice to the petitioner, owner, has to be examined with reference to the scope of enquiry covered under Section 61B of the Forest Act which cast a statutory burden on the owner to prove the essential ingredients thereunder to avoid the confiscation. When the involvement of the vehicle in the commission of the forest offence stands proved, what is to be looked into is whether the owner had established any case, to avoid confiscation as covered under sub Section (2) of Section 61B of the Act. So much so, in the Page numbers W.P.(C) No.26602 OF 2007 present case, the confiscation proceeding was heard by the successor officer and not by the officer who recorded the evidence and heard the arguments does not make any difference at all. 5. The other ground canvassed by the learned counsel to impeach Ext.P4 judgment that the appeal was heard and dismissed by an Additional District Judge on the premise that Section 61D of the Forest Act denotes the District Judge as a persona designata and not as a court has no merit. The judicial pronouncements rendered in **“M.K Raghavan v District Judge” (1988(1) K.L.T 201)** and **“Varkey Abraham v District Judge” (1994(1) K.L.T 580)** relied by the learned Special Government Pleader give sufficient indications that the District Judge is hearing an appeal under Section 61D as a civil court and not as a persona designata. A division bench of this court in **“State of Kerala v Margaret Koshy” (1999(3) KLT 359)** examining the question whether a revision will lie against an order under Section 61D of the Forest Act has held that the District Judge hearing an appeal under Section 61D of the Forest Act is doing so as a civil court, and so much so, a revision against his judgment is entertainable under Section 115 of the Code of Civil Procedure. This court has held in the above decision that the appeal is heard by the District Court as the District Court is which is subordinate to the High Court. In that view it was held a revision against the judgment of that court will Page numbers W.P.(C) No.26602 OF 2007 lie under Section 115 of the Code of Civil Procedure. So, the challenge canvassed that the District Judge is hearing an appeal under Section 61D of the Forest Act as a persona designata has no merit at all. 6. Suffice to state that the grounds raised to impeach Ext.P3 confiscation order as confirmed by Ext.P4 judgment by the court below are meritless. Writ petition is dismissed. Sd/S.S.SATHEESACHANDRAN JUDGE //TRUE COPY// P.A TO JUDGE vdv