Aspinwall and Company Ltd v. State of Kerala and Chief Conservator of Forests and Custodian (Ecologically Fragile Lands)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** **FRIDAY, THE 2ND DAY OF NOVEMBER 2012/11TH KARTHIKA 1934** ## **WP(C).No. 20712 of 2012 (L) ---------------------------** **PETITIONER:** ## **-----------** **ASPINWALL AND COMPANY LTD HAVING ITS REGISTERED OFFICE AT DEVANKULANGARA EDAPPALLY,KOCHI-24 REPRESENTED BY ITS COMPANY SECRETARY SMT.K.S.SMITHA.** **BY ADVS.SRI.E.K.NANDAKUMAR (SR.) SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.NITHIN GEORGE** **RESPONDENTS:** **------------** **1. STATE OF KERALA REPRESENTED BY THE SECETARY TO GOVERNMENT FOREST & WILD LIFE DEPARTMENT GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001.** **2. THE CHIEF CONVSERVATOR OF FORESTS AND CUSTODIAN,** - **(ECOLOGICALLY FRAGILE LANDS),THIRUVANANTHAPURAM PIN-695014.** **R1-2 BY SPL. GOVT. PLEADER SRI.M.A.THOMASKUTTY FOR FOREST DEPARTMENT** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.10.2012, THE COURT ON 02-11-2012, DELIVERED THE FOLLOWING:** **vk** **WP(C).No. 20712 of 2012 (L) ---------------------------** **APPENDIX** **---------** **PETITIONER(S) EXHIBITS ----------------------** **EXT-P1 TRUE COPY OF THE ORDER OF THE FOREST TRIBUNAL,MANJERI IN O.A.86/1976 DATED 9.6.1978** **EXT.P2 TRUE COPY OF THE JUDGMENT DATED 27.7.1999 OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO.4423/1984.** **EXT-P3 TRUE COPY OF THE LOCATION SKETCH** **EXT.P4 TRUE COPY OF THE REGISTRATION CERTIFICATE ISSUED BY THE RUBBER BOARD IN RESPECT OF THE SURROUNDING PLANTATION,DATED 31.8.1976.** **EXT.P5 TRUE COPY OF THE COMMUNICATION DATED 1.10.2007 TOGETHER WITH THE NOTIFICATION DATED 2.1.2001.** **EXT.P6 TRUE COPY OF THE APPLICATION FOR REVIEW DATED 4.12.2009 FILED ON 7.12.2009.** **EXT.P7 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA, DATED 21.1.2011 IN WP(C) 38666/2010** **EXT.P8 TRUE COPY OF THE REPORT SUBMITTED BY THE ECOLOGICALLY FRAGILE LAND COMMITTEE BEFORE THE 2ND RESPONDENT PURSUANT TO ITS INSPECTION DATED 13.12.2011** **EXT.P9 TRUE COPY OF THE OBJECTION DATED 4.5.2012 FILED BY THE PETITIONER.** **EXT.P10 TRUE COPY OF THE PETITION FILED BY THE PETITIONER DATED 4.5.2012 FOR PERMISSION TO ADDUCE EVIDENCE AND TO ACROSS EXAMINE THE COMMITTEE MEMBERS WHO HAD PREPARED EXT.P8 REPORT SUBMITTED BEFORE THE 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS : nil** **-----------------------** **/ TRUE COPY /** **P.A. TO JUDGE** **VK** ## **T.R.RAMACHANDRAN NAIR, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C).No. 20712 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **DATED THIS THE 2nd DAYOF NOVEMBER, 2012** ## **JUDGMENT** The short question is whether the request of the petitioner to cross examine the members of the Ecologically Fragile Land Committee, is liable to be allowed. The essential facts for the disposal of the writ petition are the following: 2. The petitioner's estate includes among other items of properties, land in R.S. No.1032 in Kalikavu Village. An extent of 28.40 acres of land in the said survey number was involved in proceedings under Act 26 of 1971. The Forest Tribunal dismissed O.A. No.86/1976 which was confirmed by this Court in the appeal filed by the petitioner. Finally, the Supreme Court allowed the appeal filed by the petitioner in C.A. No.4423/1984. Later, the said land was notified as ecologically fragile land under Section 3(1) of Act 21 of 2005. Ext.P3 is the location sketch relating to the property. Seeking for review of the notification, the petitioner has approached the Chief Conservator of Forests under Rule 17 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Rules 2007 (for short 'the Rules'). Pursuant to Ext.P7 judgment of this Court, the W.P.(C).No.20712/2012 -2- review application was taken up on file and the Ecologically Fragile Lands Committee inspected the property and filed a report as per Ext.P8. Ext.P9 is the copy of the objection filed by the petitioner and Ext.P10 is the application filed seeking permission to adduce evidence and to cross examine the committee members who had prepared Ext.P8 report. The petitioner seeks for a direction to allow Ext.P10 application. 3. In the statement filed on behalf of the second respondent, it is pointed out that the application filed under Section 19(3)(b) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (for short 'the Act') was forwarded to the Conservator of Forests through the designated committee formed as per Rule 18 of the Rules and the Committee submitted a report. The proceedings are only concerning the application for review of the notification. The rules do not provide for adducing evidence by the applicants. But in the interest of fairness and natural justice, copy of the inspection report was forwarded to the petitioner for filing objection and a hearing was conducted on 2.7.2012. It is stated that the rules do not provide for a procedure specifically for granting permission to cross examine the committee members. 4. Learned Senior Counsel for the petitioner, Shri E.K. Nandakumar W.P.(C).No.20712/2012 -3- submitted that an examination of the committee members is essential, especially to conform to the principles of natural justice. The Committee has submitted its report on the observations made and the petitioner has, therefore, a right to cross examine the Committee members and reliance is placed on the judgment of the Apex Court in **State of Kerala v. K.T. Shaduli Yusuff** (1977 STC (Vol.39) 478). 5. Shri M.A. Thomaskutty, learned Special Government Pleader submitted that the application herein is only for review of the notification and as no power is conferred under the Act and Rules to summon and take oral evidence from the witnesses, the question of allowing an opportunity for cross examining the Committee members does not arise and learned Government Pleader relied upon a decision of this Court in **Joseph v. Authorised Officer** (1993 (1) KLT 212). That was a case which arose under the Kerala Forest Act, 1961 with regard to the proceedings under Section 61A. This Court held that no party has a right to cross examine the officers involved in the seizure of the vehicle in proceedings under the said Act. 6. First I shall come to the procedure prescribed under the enactment in question. The provision invoked by the petitioner is Section 19(3) of the W.P.(C).No.20712/2012 -4- Act and Rule 17 of the Rules. The Act provides for constitution of a Tribunal under Section 10, for settlement of disputes with a remedy of appeal to this Court. Section 12 confers power on the Tribunal, viz. all the powers of a Civil Court while trying a suit under the Code of Civil Procedure, in respect of the specified matters under (a) to (g) and examining him on oath. Section 19 is under the heading “Validation and Transitory Provision” and Section (3)(b) confers power of scrutiny on the custodian suo motu or on an application made by the owner or any person having the right of possession or enjoyment of such land and to revise the notification. Therefore, the power vested with the custodian under Section 19(3) is different from the procedure for settlement of disputes covered by Sections 10 and 12. Rule 17 under Chapter V provides for application for review of notification. The said rule is extracted below: “ **17. Owner claiming exemption to apply** .-- (1) Any owner or any person having the right of possession or enjoyment of any land notified under sub-section (1) of Section 3 of the Act may file an application before the custodian giving details of the location, extent, survey number, crops cultivated etc; seeking a scrutiny of the notification and to decide whether such land qualify to be notified as ecologically fragile in accordance with the provision of the Act.” W.P.(C).No.20712/2012 -5- Rule 18 provides for inspection of the land by a committee consisting of three designated officers. Sub-rule (2) is in the following terms: “(2) The Committee shall inspect the land in respect of which application has been filed and shall prepare a report as to whether the notified area is consistent with the provisions of this Act or not, and submit the same to the custodian within one month from the date of receipt of the order from the custodian for local inspection of the land.” Rule 19 gives power to the custodian to make additional enquiries and Rule 20 is under the heading “Issue of Revised Notification”. Therefore, after the receipt of the report of the committee, the custodian is given power to conduct further enquiry and call for records as he deems fit. This is different from the procedure conferred on the Tribunals under Section 12. Rule 20 is also relevant which is extracted below: “20. Issue of revised Notification.-- (1) The custodian, after verification of the particulars mentioned in the application and the documents produced along with the same and after considering the report of the Committee under Rule 18 and after such further enquiry as he deems necessary, if satisfied that the land notified, or part thereof, is inconsistent with the provisions of the Act, shall by order make a declaration in writing that such land or part thereof is not vested in the Government as per the Act W.P.(C).No.20712/2012 -6- and issue a revised notification within three months from the date of receipt of an application under Rule 17 accordingly. Provided that in case a revised notification is to be issued in respect of the land notified the custodian shall arrange a survey and demarcation of such land before issuing the revised notification. (2) A copy of the revised notification shall be communicated to the applicant. (3) If on scrutiny as per sub-rule (1) of Rule 20, the custodian finds that the land notified is consistent with the provisions of the Act, he shall make a declaration to that effect in writing and communicate to the applicant.” Specifically no power is conferred to examine witnesses on oath and allow cross examination of the witnesses. Of course, the power conferred is quasi judicial in nature, but still, in the absence of a specific conferment of power to receive oral evidence the question is whether the application of the petitioner can be entertained. 7. All these aspects have been well explained in **Joseph's case** (1993 (1) KLT 212). The question was whether the right to cross examine is part of the principles of natural justice and para 10 deals with the position thus: “10. It is apposite in this context to quote the following W.P.(C).No.20712/2012 -7- observations made by Tucker L.J., in _Russel v. Duke of Norfolk_ (1949 All. E.R. 109-at 118): “The requirement of natural justice must depend on the circumstances of the case, the nature of enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth”. Observations of Harman J. in Byrne _v. Kinematograph Renters Society Ltd.,_ (1958-1 W.L.R. 762) are equally illuminating: “What then are the requirements of natural justice in a case of this kind? First I think that the person accused should know the nature of the accusation made; secondly that he should be given an opportunity to state his case; and thirdly, of courts:, that the tribunal should act in good faith. I do not myself think that there really is anything more”. A bench of two Judges of the Supreme Court (Palekar and Aiagiriswami, JJ) _in Hira Nath Mishra v. Rajendra Medical College_ (1973) 1 S.C.C. 805) followed the above principle and observed that principles of natural justice are not inflexible and may differ in different circumstances. Their Lordships did not accept the contention that cross-examination is such a right denial of which would involve infringement of the principles of natural justice. Of course, the context mentioned in the said case is domestic enquiry conducted by a disciplinary authority in an W.P.(C).No.20712/2012 -8- educational institution. A bench of three Judges of the Supreme Court consisting of S.M. Sikri C.J., A.N. Ray and M.H. Beg JJ. (as they then were) in _Kanungo & Co. v. Collector, Customs Calcutta_ (AIR 1972 S.C.2136) had occasion to consider the question whether right to cross-examination is a limb of the principles of natural justice. The context was confiscation proceedings adopted by customs authorities under the provisions of Sea Customs Act, 1878. This is what the bench said: “In our opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities”. (Vide _Kanungo & Co. v. Collector_ AIR 1972 S.C.2136). A Full Bench of this Court has considered a similar contention in the context of assessment proceedings under the Kerala General Sales Tax Act in _M. K. Thomas v. State of Kerala_ (1977 S.T.C. (Vol.40) 278). After referring to certain decisions, the Full Bench concluded that “we are satisfied that the petitioner these cases cannot claim the right of cross-examination as part of the reasonable opportunity contemplated by S.17(3) of the Act (KGST Act)”. So far as the confiscatory provisions in both the Acts are concerned, there is much similarity between them. Hence a different stand under the Forest Act is not warranted by the provisions. I have already referred to the relevant provisions of the Act, particularly those W.P.(C).No.20712/2012 -9- relating to proceedings for confiscation under S.61A of the Act.” The Apex Court, in the decisions referred to therein, has answered the question in the negative, in respect of the domestic enquiry by disciplinary authority in an educational institution as well as confiscation proceedings under the Sea Customs Act. Lastly, this Court relied on the Full Bench decision of this Court in **M.K. Thomas v. State of Kerala** (1977 S.T.C. (Vol.40) 278). It was held that “so far as the confiscatory provisions in both the Acts are concerned, there is much similarity between them.” Therefore, I find force in the submission of the learned Government Pleader that there is total similarity in the situations arising in the proceedings under Section 61A of the Forest Act wherein a cross examination was sought on the report furnished by the Forest Range Officer and as regards the report furnished by the Ecologically Fragile Lands Committee, herein. 8. The decision relied upon by the learned Senior Counsel for the petitioner is one concerning a best judgment assessment under Section 17 (3) of the KGST Act. The matter was examined in the light of Section 17 of the Act. At pages 488 and 489 it was analysed thus: “Section 17(3) of the Act runs thus: “If no return is submitted by the dealer under sub-section W.P.(C).No.20712/2012 -10- (1) within the prescribed period, or if the return submitted by him appears to the assessing authority to be incorrect or incomplete, the assessing authority shall, after making such enquiry as it may consider necessary and after taking into account all relevant materials gathered by it, assess the dealer to the best of its judgment: Provided that before taking action under this subsection the dealer shall be given a reasonable opportunity of being heard and, where a return has been submitted, to prove the correctness or completeness of such return” An analysis of this provision would show that this sub-section contemplates two contingencies: (1) where the assessee does not file his return at all; and (2) where the assessee files his return, which, however, is found to be incorrect or incomplete by the assessing authority. The sub-section further enjoins on the assessing authority a duty to consider the necessary materials and make an enquiry before coming to its conclusion. The proviso expressly requires the assessing authority to give to the assessee a reasonable opportunity of being heard even if the assessee had committed default in not filing the return. Since the statute itself contemplates that the assessee should be given a reasonable opportunity of being heard, we are not in a position to agree with the contention of the learned counsel for the appellant that if such an opportunity is given, it will amount to condonation of default of the assessee. The tax proceedings W.P.(C).No.20712/2012 -11- are no doubt quasi-judicial proceedings and the sales tax authorities are not bound strictly by the rules of evidence, nevertheless the authorities must base their order on materials which are known to the assessee and after he is given a chance to rebut the same. This principle of natural justice which has been reiterated by this Court in the decisions cited above has been clearly incorporated in section 17(3) of the Act as mentioned above. The statute does not sop here, but the second part of the proviso confers express benefit on the assessee for giving him an opportunity not only of being heard but also of proving the correctness or completeness of such return. In view of this provision, it can hardly be argued with any show of force that if the assessee desires the wholesale dealers whose accounts are used against him to be cross-examined in order to prove that his return is not incorrect or incomplete he should not be conceded this opportunity. Apart from anything else, the second part of the proviso itself confers this specific right on the assessee. It is difficult to conceive as to how the assessee would be able to disprove the correctness of the accounts of Haji P.K. Usmankutty or the other wholesale dealers, unless he is given a chance to cross-examine them with respect to the credibility of the accounts maintained by them.” Their Lordships considered the effect of the proviso which requires granting a reasonable opportunity of being heard and also an opportunity to W.P.(C).No.20712/2012 **==> picture [21 x 9] intentionally omitted <==** prove the correctness or completeness of such return and in the light of the above, it was held that “if the assessee desires the wholesale dealers whose accounts are used against him to be cross-examined in order to prove that his return is not correct or incomplete he should not be conceded this opportunity.” It is evident that the said view has been taken in the light of the specific provisions under Section 17(3) of the KGST Act, especially the proviso. Thus, the situation therein, covered by Rule 17(3) of the KGST Act are not similar in nature. Therefore, I respectfully agree with the view taken in **Joseph's case** (1993 (1) KLT 212). This Court therein, had relied upon the decisions of the Apex Court under certain other enactments. 9. The writ petition is therefore dismissed. It is made clear that the petitioner can produce any materials by way of documents, if they so desires. It will be made available within a period of two weeks from the date of receipt of a certified copy of this judgment. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **kav/**