Mohanan Nair v. Forest Range Officer, Kumili & Divisional Forest Officer, Kottayam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943** ## **WP(C) NO. 15481 OF 2021** ## **PETITIONER:** MOHANAN NAIR AGED 57 YEARS S/O KARUNAKARAN NAIR, KOTTARATHIL HOUSE, VALIYATHOVALA BHAGAM, PAMPADUMPARA, IDUKKI DISTRICT. BY ADVS. T.A.UNNIKRISHNAN K.K.AKHIL ## **RESPONDENTS:** 1 THE FOREST RANGE OFFICER KUMILI, OFFICE OF THE FOREST RANGE OFFICER, KUMILI, IDUKKI, PIN-685509. 2 THE DIVISIONAL FOREST OFFICER KOTTAYAM, OFFICE OF THE DIVISIONAL FOREST OFFICER, KOTTAYAM, PIN-686001. BY ADV. T.P.SAJAN, SPECIAL GOVERNMENT PLEADER(FOREST) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.15481/2021 2 ## **P.V.KUNHIKRISHNAN, J** ## **-------------------------------** **W.P.(C)No.15481 OF 2021 -------------------------------Dated this the 23[rd] day of November, 2021** ## **JUDGMENT** ## **The above writ petition is filed with following prayers:** _“i) issue a writ of mandamus or such other writ order or direction directing the respondents to release the vehicle bearing Registration No.KL-21-C-528 and the timber seized and detained to the petitioner forthwith._ _ii) Grant such other writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”_ ## **2. The petitioner is the registered owner** **of a Truck bearing Registration No.KL 21-C-** **528. On 12.03.2021, the 1[st] respondent took the vehicle in to custody, while it was used for transporting light timber which were cut and collected from a private patta land. According to the petitioner, the same was** WP(C) NO.15481/2021 3 **seized alleging that the provisions of the Kerala Promotion of Tree Growth in Non Forest Area Act, Kerala Forest Act, Kerala Forest Produce Transit Rules and the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently assigned) Rules, 1995 are violated. According to the petitioner, a reading of the allegations will not reveal commission of any such offence. According to the petitioner, the Kerala Forest Act has no application. There is no provision for confiscation of the vehicle. In spite of making requests, the respondents are not releasing the vehicle and timber. Hence this writ petition is filed.** **3. When this writ petition came up for consideration, this Court considered the contentions of the petitioner in detail and passed an order on 26.08.2021 for releasing the vehicle subject to the confiscation proceedings under Section 61A of the Forest** WP(C) NO.15481/2021 4 ## **Act. It will be better to extract the order** ## **dated 26.08.2021:** _“Admit._ _Special Government Pleader(Forests) takes notice for the respondents._ _Petitioner is the registered owner of a vehicle bearing number KL-21C-528. The first respondent seized the vehicle of the petitioner on 12.03.2021 while the same was being used for transporting timber logs, alleging commission of offences punishable under the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005, the Kerala Forest Act, 1961, the Kerala Forest Produce Transit Rules, 1975 and the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995. The petitioner seeks release of the vehicle and timber logs seized from him, in this proceedings under Article 226 of the Constitution of India._ _2. When the matter was taken up, the learned counsel for the petitioner pressed for an interim order for release of the vehicle pointing out that there is absolutely no justification for detaining the vehicle._ _3. The learned Special Government_ _Pleader(Forests) submitted that the vehicle of the petitioner is being detained, as the same is liable to be_ WP(C) NO.15481/2021 5 _confiscated under Section 61A of the Forest Act for having been used for transporting timber otherwise than in accordance with the Waste Land Rules Regarding Sale of Land for Coffee or Tea Cultivation (the Rules) and the Kerala Forest Produce Transit Rules._ _4. It is settled that only when a forest offence is believed to have been committed in respect of the property of the Government, Section 61A of the Forest Act gets attracted [See Bhargavan v. Divisional Forest Officer, 1994 KHC 29]. The timber logs carried in the vehicle are admittedly timber logs cut and removed from a land covered by the Rules. No doubt, the proprietorship of all teak, blackwood, ebony or karunthali and sandalwood trees in the lands covered by the Rules vests with the Government. The timber logs carried in the vehicle of the petitioner, however, do not include logs of the above species of trees. The timber logs carried in the vehicle, on the other hand, were only logs of other important trees scheduled in the Rules. It is seen that as far as the said trees are concerned, the only restriction in the Rules is that the same shall not be cut and removed without the previous permission of the Chief Conservator of Forests. The petitioner does not have a case that the removal of the tress was_ WP(C) NO.15481/2021 6 _with the permission of the Chief Conservator of Forests. But that does not mean that the respondents can proceed as if the said timber belongs to the State. If that be so, I am of the prima facie view that there is no justification for detaining the vehicle of the petitioner. In the circumstances, there will be an interim order directing the respondents to release the vehicle of the petitioner on execution of bond. As the vehicle of the petitioner is ordered to be released on a prima facie finding that there cannot be any proceedings in respect of the same under Section 61A of the Forest Act, it is made clear that the competent authority under the Forest Act would be free, notwithstanding this order, to initiate proceedings in respect of the vehicle of the petitioner, if so advised, under Section 61A of the Act and in that event, the release of the vehicle would be subject to the outcome of the said proceedings.”_ ## **4. Now the learned counsel for the** **petitioner submitted that the timber is also to be released to the petitioner. The learned Government Pleader submitted that this can not be released because there are legal hurdles.** WP(C) NO.15481/2021 7 **5. According to me, this is a matter to be considered by the 2[nd] respondent. The petitioner already submitted Ext.P3 representation before the 2[nd] respondent. The petitioner can raise all the contentions including the legal contentions raised in this writ petition before the 2[nd] respondent and the prayer for release of the timber. All the points raised by the petitioner in this writ petition are left open. Moreover, the release of the vehicle as per order dated 26.08.2021 will be subject to any confiscation proceedings under Section 61A of the Forest Act.** **Therefore, this writ petition is disposed of in the following manner:** **(i) The release of the vehicle as per order dated 26.08.2021 will be subject to any confiscation proceedings as per Section 61A of the Kerala Forest Act.** **(ii) The 2[nd] respondent is directed to** WP(C) NO.15481/2021 8 **consider Ext.P3 representation submitted by the petitioner for release of the timber.** **(iii) The petitioner is free to submit additional representation, if any. The representation is to be considered by the 2[nd] respondent as expeditiously as possible, at any rate, within three weeks from the date of receipt of a copy of this judgment.** **iv) All the contentions raised by the petitioner in this writ petition are left open.** **Sd/P.V.KUNHIKRISHNAN JUDGE** **DM** WP(C) NO.15481/2021 9 ## **APPENDIX OF WP(C) 15481/2021** ## PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE REGISTRATION CERTIFICATE OF THE VEHICLE BEARING REG NO.KL-21-C-528. EXHIBIT P2 TRUE COPY OF THE FORM NO.1 IN OFFENCE NO.3/2021 PREPARED BY THE 1ST RESPONDENT. EXHIBIT P3 TRUE COPY OF THE REQUEST DATED 30.05.2021 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT P4 TRUE COPY OF THE LETTER DATED 21.04.21 SSEND BY 1ST RESPONDENT TO THE 2ND RESPONDENT. EXHIBIT P5 TRUE COPY OF THE BASIC TAX RECEIPT DATED 10.02.2021, ISSUED BY THE VILLAGE OFFICER, KUMILI. EXHIBIT P6 TRUE COPY OF THE DECLARATION STATEMENT DATED 12.03.2021. EXHIBIT P7 TRUE COPY OF THE CERTIFICATE DATED 10.01.2021 ISSUED BY THE VILLAGE OFFICER, KUMILI. ## RESPONDENTS EXHIBITS: ANNEXURE R2(A) TRUE COPY OF THE FROM I. ANNEXURE R2(B) TRUE COPY OF THE MAHAZAR. ANNEXURE R2(C) TRUE COPY OF THE LETTER NO.B32877/2021 DTD.26.03.2021. ANNEXURE R2(D) TRUE COPY OF THE LETTER NO.B22675/2021 DTD.21.04.2021. ANNEXURE R2(E) TRUE COPY OF THE DOCUMENTS RELATING 10 WP(C) NO.15481/2021 TO TRANSFER OF THE LAND. ANNEXURE R2(F) TRUE COPY OF THE DOCUMENT NO.4734/1943. //TRUE COPY// PA TO JUDGE