K.K. Rajappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 11TH DAY OF FEBRUARY 2014/22ND MAGHA, 1935** ## **Crl.MC.No. 1366 of 2011** **---------------------------------[AGAINST O.R. NO.6/2010 OF PONGANAMKAD FOREST STATION] ...........** **PETITIONER/1ST ACCUSED:** **----------------------------------------** **K.K.RAJAPPAN, KOTTAMKULATHIL HOUSE, POOMALA.P.O., MULAMKUNNATHUKAVU, THRISSUR, THRISSUR DISTRICT.** **BY ADV. SRI.K.PAUL KURIAKOSE.** ## **RESPONDENT/STATE:** **--------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE FOREST RANGE OFFICER, PATTIKKAD, THRISSUR, PIN-680 652.** ## **BY SPL.GOVERNMENT PLEADER (FOREST) SRI. M.P. MADHAVANKUTTY.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09-01-2014, THE COURT ON 11-02-2014 PASSED THE FOLLOWING:** **Prv.** **CRL.M.C. NO.1366/2011:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A1: COPY OF THE FOREST OFFENCE CHARGE SHEET/REPORT IN FORM NO.II. ANNEXURE A2: COPY OF THE PATTA NO.LA (P) 1113/KLNR DTD. 18/06/1981. ANNEXURE A3: COPY OF THE PARTITION DEED NO.437 OF 1993 OF THRISSUR SUB REGISTRY DTD. 27/01/1993. ANNEXURE A4: COPY OF THE MAHAZAR DTD. 07/05/2010. ANNNEXURE A5: COPY OF THE RECEIPT DTD. 07/05/2010 ISSUED BY MR. VINOD CHACKO ACKNOWLEDGING RECEIPT OF TEMPORARY POSSESSION OF THE TIMBER LOGS.** ## **RESPONDENT'S ANNEXURES: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.1366 of 2011 .................................................. Dated this the 11[th] day of February, 2014. ## **O R D E R** This is an application filed by the first accused in O.R.No.6/2010 of Ponganamkad forest station to quash the proceedings under Section 482 of the Code of Criminal Procedure. 2. It was alleged in the petition that the petitioner, who is the first accused in O.R.No.6/2010 of Ponganamkad forest Station, along with two others allegedly committed the offences under Rules 3 and 4 of the Kerala Forest (Prohibition of Felling of Tress Standing on Land Temporarily or Permanently Assigned) Rules, 1995 (hereinafter referred to as ''the Rules”. The petitioner had sold 12 teak trees, three Kunnivaga trees and one Irul tree which were standing in the petitioner's residential property for a consideration of Rs.90,000/- for raising funds for the marriage of the petitioner's daughter. The said trees were felled and later cut into logs by accused 2 and 3 in the above case. On 7.5.2010 the officers of the Ponganamkad forest station came to the residential compound of the petitioner and registered the above crime and seized the timber logs as per the mahazer dated 7.5.2010. On the same day, the timber logs were released on temporary custody to one Vinod Chacko, who had retained the some in the petitioner's residential compound. As per the Patta, only one Rose tree is scheduled therein which has not been cut and removed by the petitioner. So only the said Rose wood tree would come within the fold of condition No.(1) in the Patta. Only those trees which are standing on the lands temporary or permanently assigned and the right of the Government over which has been expressly resolved in the Patta of such lands shall be absolute property of the Government as per Rule 3 of the above said Rules. The trees now cut were not scheduled and reserved in the name of Government in the Patta. So, it belong to the petitioner. These trees were planted by the petitioner for protecting his rubber plantation and as such, he is the absolute owner of the same. No sanction is required from the forest officials for cutting and removing the trees. So there is no necessity to continue the prosecution and it is only an abuse of process of the court. So the petitioner prayed for quashing the proceedings in O.R.No.6/2010 of Ponganamkad forest station as against him invoking the power under Section 482 of the Code of Criminal Procedure. 3. Heard the counsel for the petitioner and Special Public Prosecutor for forest cases. 4. The counsel for the petitioner submitted that no offence under the above said Rules has been attracted in this case. Further, the only tree that has been reserved as per the Patta is a Rose wood tree and no other trees have been reserved. In order to attract condition No.(1), it must be proved by the Forest Officials that the trees cut and removed were reserved in favour of the Government and prior sanction is required for cutting and removing the trees and further, if the property is having only an extent less than one hector, no permission need be required for cutting and removing of such trees under the Kerala Preservation of Trees Act, 1986. By virtue of the proviso to Section 5 of the Preservation of Trees Act, no offence under the Act has been attracted and as such, the same is liable to be quashed. He had relied on the decision reported in **Augustine Mathew v. State of Kerala** (2009 (3) KLT 560) in support of this case. 5. On the other hand, the Special Public Prosecutor for forest cases submitted that the offences alleged are in violation of Rule 3 of the Rules and as such, the petitioner cannot rely on the provisions of Kerala Preservation of Trees Act as the area is not a notified area so as to attract the provisions of this Act. Further, as per Condition No.(1) in the assignment, Government has got every right over the trees existing in the property and reserved and to be grown in the property as well. So, for the purpose of cutting and removing the trees, sanction from the department is required and non compliance of which will attract the offences under the above said Rules. He had relied on the decision reported in **Gopi v. Tahsildar** (2002 (3) KLT 526), **Manoj v. State of Kerala** (2013 (3) KLT 649) and also **Varkey Chacko v. State of Kerala** , an unreported decision of this Court in W.P.(C) No.804/2006 in support of his case. 6. I have considered the rival contentions of both the parties in detail. 7. It is an admitted fact that the trees which were cut were in the property in possession of the petitioner, which was part of Annexure A(2) patta issued in favour of one Balan, the predecessor in interest of the petitioner. It is also an admitted fact that the property in question was allotted to the share of the petitioner as per Annexure-A3 partition deed. The fact that the trees were cut from the property and it was made into logs by accused 2 and 3 in the case with the consent and connivance of the petitioner is also not in dispute. The only question is whether any sanction is required for cutting and removing of such trees and whether any offence has been committeed as per the Rules. It is true that in the decision reported in Augustine Mathew's case (supra), a Single Judge of this Court has held that unless there is specific reservation of any tree in the Patta, the provisions of either of the Rules is attracted. Further, if it is a residential property having an extent of less than on hector, then the provisions of Kerala Preservation of Trees Act also is not applicable and in that case it has been held that unless such a reservation is made in respect of teak trees standing in the compound of the residential building can be cut and removed without permission if the residential compound is not having an extent of more than one hector and quashed the proceedings in that case. 8. Before going through the case, I may refer to the relevant provisions of the Rules which requires consideration in this case. Since, the learned Special Public Prosecutor for forest cases submitted that the provisions of Kerala Preservation of Trees Act is not applicable, we need not consider that question at present. The offences alleged in the case is under the Rules. Section 3 and 4 of the Rules reads as follows: 3. **Trees to be absolute property of** **Government:** - All trees standing on lands temporarily or permanently assigned, the right of Government over which has been expressly reserved in the deed of grant or order of assignment of such land, shall be the absolute property of Government” Rule 4. **Sanction of Divisional Forest Officer to fell, lop etc., of trees:-** No person shall fell, lop, cut or maim or otherwise maltreat any tree which is the property of Government without prior sanction in writing granted by the Divisional Forest Officer having jurisdiction over the area: Provided that in cases where the assignee is allowed under the deed of grant or order of assignment to lop, or fell any such tree, such lopping or felling may be done by him in the matter and subject to such conditions and on payment of such sum as specified in the deed or grant or order of assignment in that behalf. 9. It is an admitted fact that the land in question is a forest land and it was assigned to the predecessor of the petitioner as per the provisions of the Kerala Government Land Assignment Act, 1960 and Kerala Land Assignment Rules 1964. Section 3 of the Assignment Act deals with assignment of Government lands which reads as follows: 3. **Assignment of Government Land:-** (1) Government land may be assigned by the Government or by any prescribed authority either absolutely or subject to such restrictions, limitations and conditions as may be prescribed. [(2) No Government land assignable for public purpose may be assigned under subsection (1) without consulting the local authority as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or the Kerala Municipality Act, 1994 (20 of 1994) as the case may be and if such local authority required such land, for carrying out any of the functions assigned to it, Government may set apart such land for that purpose]. Explanation:- Any restriction as to alienation, whether voluntary or otherwise, of the rights of the assignee, shall, be a restriction within the meaning of this section. Rule 8 of Kerala Land Assignment Rules deals with lands value and other dues to be paid in the event of assignment of the property which reads as follows: ## 10. Annexure A2 Patta contains condition No.(1) which reads as follows: The full right over all the trees within the grant and specified in the schedule vests in the Government and the assignee is bound to take care of all such trees standing on the land at the time of assignment or that may come into existence subsequent to it. 11. Condition No.(2) says the assignee is bound to afford all facilities to the Officers of Government in the matter of inspecting the land periodically for checking the trees referred to in condition No.(1) above and removing the same, if necessary. 12. The question whether the Government has got any right in respect of other trees not specifically reserved has been considered in the decision reported in **Manoj's case** (supra) and held that by virtue of condition No.(1) in the Patta, Government will have right in such trees though it was not specifically reserved in the schedule, but if it is there in the property at the time of assignment and grown subsequent to the same as well. Another Single Judge of this Court in an unreported decision in **Varkey Chacko v. State of Kerala** in WP(C).No.904/2006, considered condition Nos. (1) and (2) in the Patta and found that by virtue of that Patta it has been held that all trees standing in the property at the time of assignment and grown spontaneously subsequent date belong to the Government and, if any such tree has to be cut and removed, sanction of the department is required. This provision has not been properly considered by the learned Single Judge in Augustine Mathew's case (supra ). Further, the same view has been taken in **Gopi's case** (supra) where it has been held that when there is no provision which entitles an assignee to cut the trees that had been there at the time of assignment with absolute right and to the execution of anybody else, then the Government will have right in that trees and without the permission of the Department, the trees cannot be cut. This provision and the decisions in **Gopi's case** (supra) has not been considered by the learned Single Judge while disposing of **Augustine Mathew' s case** (supra). Further, any amount has been collected being the value of the trees at the time of assignment or whether the trees were in existence even at the time of assignment which were planted by the predecessor of the petitioner in whose favour the Patta has been granted which were excluded as per Rule 10 of the Kerala Assignment Rules, etc. are not clear from the document produced and those things have to be proved by evidence. So, under the circumstances, if the matter has to be decided on the basis of the evidence, then it is settled law that the power under Section 482 of the Code of Criminal Procedure cannot be invoked to quash the proceedings as it has to be decided by the court where the case is pending on the basis of evidence. So, under the circumstances, the petitioner is not entitled to get the relief of quashing the proceedings and the petition is liable to be dismissed. 11. In the result, the petition is dismissed. Interim order granted is vacated. Office is directed to communicate this order to the concerned court. **Sd/-** **K.** ## **RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge-