P.J. Antony and Cheriyan Kuruvila v. Divisional Forest Officer, Munnar and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WP(C).No. 18493 of 2006(B) -------------------------CMA.39/2004 of DISTRICT COURT,THODUPUZHA .................... PETITIONER(S): --------------- P.J.ANTONY,AGED 68,S/O.LATE OUSEPH, PARAYIL HOUSE,MARAYOOR, DEVIKULAM TALUK. BY ADV. SRI.SAIBY JOSE KIDANGOOR SRI.BENNY ANTONY PAREL RESPONDENT(S): - --------------- 1. THE DIVISIONAL FOREST OFFICER,MUNNAR. 2. THE STATE OF KERALA, REP.BY THE SECRETARY TO THE GOVERNMENT, FOREST DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY SPECIAL GOVERNMENT PLEADER SHRI P.M.PAULOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2010, ALONG WITH WPC NO. 19478 OF 2006 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.18493/2006 ORDER ON IA NOS.13125, 13569, 15236 AND 15746/2008, 787/2009 & 9400/2010 AND C.M.APPLN.NO.5431/2008 CLOSED 13.08.2010 Sd/- THOMAS P.JOSEPH, JUDGE. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** EXT.P1 A TRUE COPY OF THE GOVT. ORDER GO(MS) NO.126/73/AD, AGRICULTURE (FOREST) DEPARTMENT DATED 3.4.73 EXT.P2 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 25.3.2001 EXT.P3 A TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE TAHSILDAR, DEVICOLAM TALUK OFFICE DATED 13.12.2000 EXT.P4 A TRUE COPY OF THE REPORT SUBMITTED BY THE VILLAGE OFFICER, MARAYOOR DATED 10.2.2001 EXT.P5 A TRUE COPY OF THE SKETCH AND REPORT PREPARED BY THE TALUK SURVEYOR DEVICOLAM DATED NIL EXT.P6 A TRUE COPY OF THE LETTER ISSUED BY THE TAHSILDAR DEVICOLAM TALUK OFFICE IN THAT REGARD DATED 29.1.2001 EXT.P7 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER MARAYOOR DATED 22.11.2002 EXT.P8 A TRUE COPY OF THE CERTIFICATE ISSUED BY THE TAHSILDAR TO THE PETITIONER DATED 20.9.2001 EXT.P9 A TRUE COPY OF THE SEIZURE MAHAZAR BY THE FOREST RANGE OFFICER DATED 11.7.2001 EXT.P10 A TRUE COPY OF THE SAID ORDER PASSED BY THE FIRST RESPONDENT DATED 16.1.2002 EXT.P11 A TRUE COPY OF THE ORDER IN REVISION PASSED BY THE CONSERVATOR OF FOREST, KOTTAYAM DATED 26.11.2002 EXT.P12 A TRUE COPY OF THE JUDGMENT IN OP NO.12359/2003 DATED 8.4.2003 EXT.P13 A TRUE COPY OF ONE SUCH APPLICATION SUBMITTED BY THE PETITIONER DATED 21.4.2003 EXT.P14 A TRUE COPY OF THE JUDGMENT OF THIS COURT IN OP 13872/2003 DATED 1.8.2003 EXT.P15 A TRUE COPY OF THE SAID NOTICE DATED 7.10.2003 EXT.P16 A TRUE COPY OF THE DEPOSITIONS OF VARIOUS WITNESSES EXAMINED AND CROSS EXAMINED BY THE FIRST RESPONDENT WP(C) NO.18493/2006 EXT.P17 A TRUE COPY OF THE PROOF AFFIDAVIT SUBMITTED BY THE PETITIONER ACCEPTED BY THE FIRST RESPONDENT ON 12.11.2003 EXT.P18 A TRUE COPY OF THE SAID ORDER DATED 23.2.2004 EXT.P19 A TRUE COPY OF THE SEIZURE REPORT OF DEPUTY RANGER IN CHARGE, MARAYOOR FOREST STATION DATED8.4.2002 EXT.P20 A TRUE COPY OF THE APPEAL MEMORANDUM FILED BY THE PETITIOENR DATED 1.4.2004 EXT.P21 A TRUE COPY OF THE SAID APPLICATION BY THE SAID THANKAMMA CYRIAC BEFORE THE FIRST RESPONDENT DATED 10.12.99 EXT.P22 A TRUE COPY OF THE COMMUNICATION BY THE RANGE OFFICER, MARAYOOR TO THE DFO MUNNAR DATED NIL EXT.P23 A TRUE COPY OF THE JUDGMENT IN CMA NO.39/2004 DATED 5.11.2005 OF THE DISTRICT COURT, THODUPUZHA EXT.P24 TRUE COPY OF THE SEIZURE REPORT DATED 11.7.2001 ISSUED BY THE FOREST RANGE OFFICER EXT.P25 TRUE COPY OF THE JUDGMENT IN CMA NOS.644/01,645/2001, 646/2001, 677/2001, 678/2001, 2/02, 3/02 AND 7/02 DATED 10.1.2007 OF ADDL.DISTRICT JUDGE, THODUPUZHA EXT.P26 TRUE COPY OF APPLICATION DATED 24.10.2008 EXT.P27 TRUE COPY OF THE REPORT DATED 28.11.2008 EXT.P28 TRUE COPY OF THE PROCEEDINGS IN ORDER NO.M5.4487/2001 DATED 2.11.2001 //TRUE COPY// ## **THOMAS P. JOSEPH, J.** **-------------------------------------W.P.(C) Nos.18493 & 19478 of 2006 -------------------------------------Dated this the 13[th] day of August, 2010.** ## **JUDGMENT** These Writ Petitions are in challenge of judgment of the learned District Judge, Thodupuzha in C.M.A.No.39 of 2004 preferred by the petitioners challenging Ext.P18 (in W.P.(C) No.18493 of 2006), order of confiscation passed by the D.F.O.,Munnar (for short, “the Authorised Officer”) on 23.02.2004 under Section 61A(2) of the Kerala Forest Act (for short, “the Act”). Initially the Authorised Officer had issued Ext.P10, order of confiscation dated 16.01.2002 which petitioners challenged before the Conservator of Forest who, by Ext.P11, order set aside Ext.P10, order and directed the Authorised Officer to conduct a denova enquiry into the matter. The Authorised Officer conducted an enquiry thereafter which culminated in Ext.P18, order. As per the said order 84 logs of sandal wood trees including the root etc. (for short, ”the trees”) have been confiscated to the Government relying on the presumption under Section 69 of the Act. Petitioners challenge the said order as confirmed by the learned District Judge. According to the petitioners Section 61A of the Act has no application in the present case since there is no case or evidence that any “forest offence” as defined in the Act has been committed in respect of the trees in question. Nor has the Authorised Officer been satisfied that any forest offence has been committed in respect of the trees. According to the learned counsel, even on the showing of the forest officials offence allegedly committed in respect of the **WP(C) Nos.18493 & 19478/2006** 2 trees, if any, is only under the Kerala Preservation of Trees Act, 1986 (for short, “the KPT Act”) which is not a “forest offence” as defined in the Act and hence no question of confiscation under Section 61A(2) of the Act arose. It is contended by learned counsel that on the materials collected in the enquiry the Authorised Officer was not correct in holding that the property seized is property of the Government applying presumption under Section 69 of the Act. It is contended that materials on record are sufficient to hold that the trees were collected from patta lands of petitioners and hence the procedure prescribed by the Government as per Ext.P1, notification ought to have been followed. In response, it is contended by learned Special Government Pleader appearing for respondents that a reading of Ext.P18, order supported by the materials on record is sufficient to show that the Authorised Officer was satisfied that a “forest offence” as understood in the Act has been committed and, on the materials on record she was justified in drawing a presumption under Section 69 of the Act. According to the learned Special Government Pleader, contention of petitioners that the trees standing in their patta lands fell down in the wind due to oldness and damage and were collected by them as directed by the forest officials cannot be accepted for a moment. The materials on record is consistant with the presumption drawn by the Authorised Officer that the trees belonged to the Government. That presumption has not been rebutted by petitioners and hence order of confiscation issued by the Authorised Officer is legal and valid. District Judge has correctly appreciated the materials on record. Learned Special Government Pleader cautioned this Court that concurrent finding of **WP(C) Nos.18493 & 19478/2006** 3 fact entered by the Authorised Officer and the learned District Judge cannot be interfered by this Court under Article 226 of the Constitution. Reliance is placed on the decision in **Surya Dev Rai v. Ram Chander (2003 (3) KLT 490)** . 2. To understand the rival contentions, it is necessary to refer to the facts of the case. Petitioner in W.P.(C) No.18493 of 2006 (P.J.Antony) is the owner in possession of 4.70 hectars (roughly 10.8 acres) of patta land in R.S.Block No.47, Survey Nos.86/3, 86/4 of Marayoor Village. Petitioner in W.P. (C) No.19478 of 2006 (Cheriyan Kuruvila) is the owner in possession of 1.0940 hectars (roughly 2.50 acres) of patta land in Survey No.86/5 of the same Village. It is not disputed that the said lands are patta lands assigned to the said persons in accordance with the relevant Rules and hence they are owners in possession of the said lands. Evidence on record show that the said persons are owners of certain other patta lands as well. On 13.12.2000 petitioners submitted application to the Tahsildar, Devikulam (Ext.P3, in W.P.(C) No.18493 of 2006) to issue a certificate to entrust the fallen sandalwood trees (in their patta lands) to the Forest Department as per Ext.P1, notification issued by the State Government as per which provision was made for auctioning of sandalwood trees collected from patta lands. As per that scheme 70% of the sale proceeds goes to the owner while the remaining 30% was to go to the Government. On receipt of the said application the Tahsildar, Devikulam issued direction to the Taluk Surveyor concerned to issue sketch (of the patta lands of petitioners where from the trees were allegedly collected) showing the place **WP(C) Nos.18493 & 19478/2006** 4 where in the property of petitioners the fallen trees are lying. The Taluk Surveyor is said to have inspected properties and on being satisfied that the trees were fallen in the patta lands of petitioners issued Ext.P5, certificate dated 22.01.2001. As per direction issued by the Tahsildar, the Village Officer, Marayoor inspected patta land of petitioners and issued Ext.P4, certificate dated 10.02.2001. While so petitioners submitted Ext.P2, application dated 25.03.2001 to the D.F.O. stating that 50 fallen trees in the property of P.J.Antony and 26 fallen trees in the property of Cheriyan Kuruvila (petitioners herein) have been collected and stacked in premises of petitioners and requesting the Department to take action (in accordance with Ext.P1, notification). The sketch issued by the Taluk Surveyor and the certificate issued by the Village Officer (supra) were appended to Ext.P2, application. On 11.7.2001 the Range Officer, Marayoor “seized” altogether 84 logs of trees from the premises of petitioners as per Ext.P9, mahazar. The Range Officer is said to have forwarded a report dated 25.01.2002 to the D.F.O.(Authorised Officer) which was to the effect that no evidence could be collected from the site (patta lands of petitioners) that the trees were collected from the said lands and since there were incidents of trees being stolen from the forest land such a possibility has to be doubted. On 16.01.2002 the Authorised Officer issued Ext.P10, confiscation order which was set aside by the Conservator of Forest as per Ext.P11 and it is thereafter that the present enquiry was conducted which culminated in Ext.P18, order. Questions that arise for determination in these Writ Petitions are whether the Authorised Officer was legally correct in ordering **WP(C) Nos.18493 & 19478/2006** 5 confiscation of the trees in exercise of power under Section 61A(2) of the Act as if a forest offence has been committed in respect of the trees in question and whether on the materials on record Authorised Officer and the learned District Judge were legally correct in coming to the conclusion that the trees belonged to the Government. 3. In **Surya Dev Rai v. Ram Chander** the Supreme Court has laid down the parameters for High Courts to interfere with interlocutory orders passed by the Subordinate Courts and Tribunals in exercise of its power under Article 227 of the Constitution. It is stated that High Courts need interfere only when the lower authority has exceeded its power, refused to exercise its power or has acted in perverse manner. But, when the finding of fact goes to the root of the jurisdiction of the lower authority, it is within the power of High Court under Article 227 of the Constitution to look into whether that finding of fact is supported by any materials on record. 4. It is relevant to note that Ext.P10, confiscation order is dated 16.01.2002 which ofcourse was set aside by the Conservator of Forests as per Ext.P11 while even as per statement in Ext.P18 and I find from the file of learned Special Government Pleader that seizure of the trees was as per Ext.P9, mahazar dated 11.07.2001 and the Range Officer who said to have seized the same is said to have submitted a report to the Authorised Officer on 25.01.2002 suspecting possibility of theft of the trees from reserve forest. In otherwords the report which the seizing officer was required to submit to the Authorised Officer under Section 61A(1) of the Act came to the Authorised **WP(C) Nos.18493 & 19478/2006** 6 Officer only on 25.01.2002 while Ext.P10, order of confiscation was passed on 16.01.2002. Section 61A of the Act states that when the Forest Officer referred to therein has reason to believe that a “forest offence” is committed in respect of the property of the Government it is within his power to seize the timber, etc. together with vehicles, etc. used to commit such offence. He is to produce the said articles before the Authorised Officer without further delay with his report. Under Section 61A (2) of the Act the Authorised Officer is to conduct an enquiry in the matter and on being satisfied that a “forest offence” has been committed in respect of such property (ie. the property of the Government), the authorized officer is to confiscate such property together with the vehicle, etc. Section 69 of the Act enables the Authorised Officer to draw a presumption when any proceeding is taken under the Act or in consequence of anything done under the Act that any forest produce is the property of the Central or State Government. No doubt Section 69 of the Act enabled the Authorised Officer to presume that the trees in question belonged to the Central or State Government. But the question is whether confiscation proceeding itself was permissible under Section 61A of the Act. That provision says that notwithstanding anything contained in the foregoing provisions of the Act where a “forest offence” is believed to have been committed in respect of timber, charcoal, firewood or ivory which is the property of the Government, the officer seizing the property under Sub-section (1) of Section 52of the Act shall produce the same before the authorized officer. In the light of Sections 61A(1) and (2) of the Act it must be shown that the seizing officer had reason to believe that a “forest offence” has been committed **WP(C) Nos.18493 & 19478/2006** 7 in respect of such property and that Authorised Officer is satisfied that such a “forest offence” has been committed to enable the former to seize the property and the latter to confiscate the same. “Forest offence” is defined in Section 2 (e) of the Act as meaning “an offence punishable under this Act or any rule ” made thereunder . Section 30 of the Act enables the Government to make Rules to carry out the objects of the Act. It follows that it is only when an offence punishable under the Act or any of the Rules made thereunder is believed to have been committed that property could be seized by the seizing officer, and on the part of the Authorised Officer, he must be satisfied that such an offence has been committed. Then alone confiscation of the property under Section 61A(2) of the Act is possible. 5. Though in Ext.P9, mahazar prepared by the Range Officer on 11.07.2001 and Ext.P18, order of confiscation issued by the Authorised Officer it is stated that it was “on getting secret information” that the trees had illicitly been stacked in the premises of P.J.Antony (petitioner in W.P.(C) No.18493 of 2006) that Range Officer effected seizure (as per Ext.P9, mahazar dated 11.07.2001), it is interesting to note that even much before that, fact of the trees being stacked in the premises of petitioners had been intimated to the authorities concerned vide Exts.P2 to P5. In fact the Range Officer (Shri Udayakumar) has stated in the enquiry about the application submitted by petitioners to the DFO being forwarded to him for action but expressed his inability to proceed with the **WP(C) Nos.18493 & 19478/2006** 8 matter on account of financial difficulty for the department. Therefore it is not as if on 11.07.2001 on getting “secret information” about stacking of trees in the premises of petitioners the Range Officer seized it as per Ext.P9, mahazar. It is pertinent to note that following the seizure of trees as per Ext.P9, mahazar Range Officer registered a case for offence punishable under the KPT Act. . Ofcourse learned Special Government Pleader would invite my attention to the copy of the crime and occurrence report in the files of the Government where there is no mention about the offence punishable under the KPT Act. I must bear in mind that copy of OR is one issued to the petitioners from the Department which contains a mention that the offence committed is under the KPT Act. It is also clear from the statement of Range Officer, Udayakumar recorded by the Authorised Officer that the offence he detected was under KPT Act. He stated in unmistakable terms in answer to a question why he stated in Ext.P9 that the trees were “unauthorisedly” stacked in the premises of petitioners that he meant that it was in violation of the KPT Act. When the question was further pursued he stated that he has not conducted further enquiry since by that time he was transferred. Learned Special Government Pleader argues that evidence of the Range Officer cannot be looked into since he could not be examined or cross examined in the enquiry. That argument, I am unable to accept. The Authorised Officer has examined the Range Officer as a witness. Having examined the Range Officer and permitted petitioners to cross examine him it is idle to contend that his statement shall not be looked into. Thus, going by the statement of Range Officer it is clear that the offence **WP(C) Nos.18493 & 19478/2006** 9 which according to him was (allegedly) committed in respect of the trees in question was one under the KPT Act. There is no case or evidence that the crime case in the matter was further investigated and commission of any different offence was revealed at any point of time. Hence I am to presume that so far as forest officials are concerned, the offence allegedly committed in respect of the trees in question is one under the KPT Act. The KPT Act is not an enactment made under the Act and hence violation of provisions of the KPT Act which is punishable under the provisions of the said Act cannot be treated as a “forest offence” as defined in Section 2(e) of the Act. As stated earlier, the Range Officer could seize the trees under Section 61A(1) of the Act only if he had reason to believe that a “forest offence” has been committed and the Authorised Officer could order confiscation only on being satisfied that a “forest offence” has been committed in respect of the trees in question. Even on the showing of the forest officials, offence alleged to have been committed in relation to the trees in question is only under the KPT Act and that admittedly does not amount to a “forest offence” and hence application of Section 61A of the Act does not arise. I must bearing in mind that the presumption under Section 69 of the Act is not regarding commission of offence but only as to the ownership of timber etc. stated therein. 6. Petitioners have a contention that they were not issued a proper notice as contemplated under Section 61B(1) of the Act. Learned counsel argued that the notice preceding the order of confiscation must state the grounds on which confiscation is proposed to be made. Learned Special **WP(C) Nos.18493 & 19478/2006** 10 Government Pleader states that such a contention cannot be allowed at this stage since with reference to the notices issued to them though not mentioning the grounds on which confiscation was proposed, petitioners took part in the enquiry, cross examined witnesses and gave evidence on their part. 7. I have been shown a copy of notice issued to the petitioners. The notices only required petitioners to adduce evidence to show that the trees in question were collected from their patta lands. There is no mention of the grounds on which confiscation was proposed to be made. But I am not impressed by the argument of learned counsel for petitioners that since the notices are not in confirmity with Section 61B (1) of the Act, order of confiscation (Ext.P18) must fall to the ground. Petitioners participated in the enquiry with full knowledge about the facts of the case, cross examined witnesses and gave evidence on their side. In such a situation at this stage petitioners cannot challenge validity of the said notices. But I must bear in mind that even in the notices the Authorised Officer did not say that any “forest offence” has been committed in respect of the trees in question which has to be taken into account while considering whether the Authorised Officer was satisfied that a “forest offence” as defined under Section 2(e) of the Act was committed in respect of the trees in question which should be the basis for a confiscation under Section 61A(2) of the Act. 8. I stated that as per the stand of the Range Officer who seized the trees as per Ext.P9, mahazar dated 11.07.2001 offence allegedly committed in relation to the said trees was under the KPT Act. Learned Special Government **WP(C) Nos.18493 & 19478/2006** 11 Pleader was not able to show from the file concerned that petitioners or anybody else is alleged to have committed any offence punishable under the Act or rules thereunder. True, a prosecution is not a pre-condition for ordering confiscation. But the Authorised Officer must have been satisfied of commission of a “forest offence” punishable under the Act or the rules made thereunder. In Ext.P18, order Authorised Officer has only left open so many possibilities such as the trees could have been uprooted from other patta lands belonging to the petitioners (in which case again the offence must be one under the KPT Act), revenue puramboke or even the reserve forest adjoining patta lands of petitioners. It is not sufficient that the Authorised Officer has left open so many possibilities in the matter. On the materials on record Authorised Officer must be satisfied of the commission of a “forest offence” under the Act or Rules made thereunder which alone can be the basis of a confiscation under Section 61A (2) of the Act. Presumption under Section 69 of the Act cannot help the Authorised Officer in this regard. That presumption is limited to presuming that property is that of the Central or State Government. There can be no presumption regarding commission of offence. No doubt possession of Government property without authority can be said to be an offence punishable under Section 27(d) of the Act. But there again it must be shown that petitioners knowingly received or had in their possession of a forest produce illicitly removed from the reserved forest or a land proposed to be constituted a reserve forest. To attract the offence under Section 27(d) of the Act it must be shown that property which the department may presume to be that of Central or State Government was **WP(C) Nos.18493 & 19478/2006** 12 removed either from the reserve forest or land proposed to be reserve forest. What the Authorised Officer has made is only a guess work that the trees may have been collected either from other patta lands, revenue puramboke or reserve forest adjoining to patta lands of petitioners. That is not sufficient to attract offence under Section 27(d) of the Act also even if it is presumed that the produce in question are that of the Central or State Government as stated in Section 69 of the Act. 9. Learned Special Government Pleader has a contention that even as per the version of petitioners, an offence under the Kerala Forest Produce Transit Rules is committed. Learned Special Government Pleader stated that if the trees in question were collected from other patta lands of petitioners, to transport the same to the premises of one of the petitioners it required a pass as per the said Rules and if no pass was obtained, that amounted to violation of Rule 3 of the said Rules which is punishable under the said Rules and that attracted “forest offence” as defined under Section 2(e) of the Act. But it is not the case of petitioners that the trees in question were collected from their other patta lands. They say that the trees in question were collected from their patta lands and stacked in the premises of their house where from it was seized. I must bear in mind that none of the documents relied on by the Authorised Officer states about any violation of the Transit Rules. It is not as if the court is to conduct a rowing enquiry as to whether any “forest offence” was possibly committed in relation to the trees in question. The Range Officer or the Authorised Officer has no case that any offence under the Kerala Forest **WP(C) Nos.18493 & 19478/2006** 13 Produce Transit Rules has been committed. Therefore it is idle to contend so in this Court. 10. I shall refer to the materials on record and say whether Authorised Officer had the jurisdiction to order confiscation. The Village Officer states that he inspected the property of petitioners, prepared a mahazar for the fallen trees seen at the spot and gave report to the Tahsildar (Ext.P4). He however does not remember the exact date of his inspection. He stated that it may be during the last week of December or first week of January, 2001. He saw the trees lying on the ground (in the patta land of petitioners). He was of the opinion that all the trees were fallen trees but he did not ascertain the oldness of those fallen trees. There were coconut and arecanut trees and other vegetations in the patta land. In answer to a question whether he could identify that all the pits were of the fallen trees, he stated that the trees were lying on the same land where they stood. But he did not see any pits (But the Tahsildar has given evidence that he was able to see pits in the patta lands of the petitioners). The Authorised Officer asked the witness how he knew that the trees stood in the patta lands (of petitioners). The Village Officer stated that he has simply reported that the trees were lying on the patta land. But when he was asked whether he got the impression that trees stood in the same land, witness stated, it can be said only if trees have fallen within 2-3 months (before inspection) and not beyond that. Next is the statement of the Tahsildar concerned who issued Ext.P6, certificate. He has stated that on receipt of application (from petitioners requesting to issue certificate to entrust the trees to **WP(C) Nos.18493 & 19478/2006** 14 the Forest Department) he forwarded the same to the Village Officer for enquiry and report and on getting report of the Village Officer he forwarded the same to the Taluk Surveyor. He also inspected patta lands of petitioners based on the report of Village Officer and Taluk Surveyor and identified patta lands of petitioners with reference to the revenue records. He identified the fallen and standing trees in patta lands of petitioners. He was satisfied that the trees were standing in the patta land of petitioners and accordingly directed the Village Officer to issue certificate to the petitioners to move the Forest Department. According to the Tahsildar at particular places there could be about 100 sandal wood trees growing in about an acre. The Tahsildar stated that he had seen pits in the patta lands of petitioners where according to the petitioners the trees stood. **WP(C) Nos.18493 & 19478/2006** 15 11. The Taluk Surveyor also gave statement before the Authorised Officer. He stated that he marked the places where trees were lying in the patta lands in his sketch (Ext.P5) and gave a report in that line. To the question whether he has evidence to show that the trees were standing in the land mentioned in the report, he stated that there were some evidence for some but no evidence for others. Of the 26 trees (of the petitioner in W.P.(C) No.19478 of 2006) evidence revealed that most of them were standing in the property of the said petitioner but there was no evidence regarding the rest. But he had no reason to say that the said trees were not standing in the patta land of petitioners. He stated that to say so he has relied on the pits of the trees near the fallen trees in the patta lands. Oldness of the fallen trees may be about an year. 12. The Range Officer, Sri. Udayakumar gave statement. He has stated in Ext.P9, mahazar for seizure of the trees that it was unauthorisedly stacked in the premises of petitioners and when he was questioned what he meant by the word 'unauthorisedly' he stated that it was collected from different places and stacked and hence there is violation of the KPT Act (I stated that if it is collected from places other than patta lands of petitioners no offence under the KPT Act arose). In answer to the question whether he had seen any other unlawful act he stated that he had not seen any other offence (committed in relation to the trees in question). He was asked on behalf of petitioners whether the latter had preferred application on 25.03.2001 (seeking departmental action for the fallen trees). The reply was that he can say about it only on seeing fair **WP(C) Nos.18493 & 19478/2006** 16 copy of the application. The Range Officer was being examined in a serious matter involving property allegedly belonging to the Government. It is difficult to think that it was without perusal of the file that the Range Officer had given statement. But he admitted that he had seen Ext.P5, application where petitioners had made a request to the Department to take action (in respect of the fallen trees). He would also say that he had addressed the DFO, Munnar in the matter and in answer to the question what steps the Department would normally take in the matter (of compliance with Ext.P1) , he stated that the request will be sent to the DFO with a detailed report for taking further action. In answer to the question what action he had taken on the application received in his office (from petitioners) he stated that the application along with covering letter was forwarded to the DFO for sanction and further action. He stated that no immediate action was taken on the application on account of financial difficulty (of the department) during the relevant time. He does not remember whether during the relevant period there was any case in his range for theft of sandal wood trees. In answer to the suggestive question that the trees in question were fallen trees in the patta lands of the petitioners his answer was that a case was registered for unauthorised collection of trees and logs (for alleged violation of the KPT Act). This is the evidence adduced on behalf of the department by examining the officials. 13. On the other side petitioner in W.P.(C) No.18493 of 2006 has given statement and on behalf of petitioner in W.P.(C) No.19478 of 2006 his power of attorney holder gave evidence. Their stand was that over a few years **WP(C) Nos.18493 & 19478/2006** 17 old and dead sandal wood trees were falling in their patta lands and since it was not feasible to make a request to the Department every time two or three trees fell, with the permission of Range Officer and Tahsildar they collected the fallen trees and stacked in their premises. According to the petitioner in W.P.(C) No.18493 of 2006 the trees ( in question) started falling from 1996 onwards and it was being collected and stacked as above stated. He denied the suggestion that trees were collected from other lands or reserve forest. It is also his version that when he contacted the Range Officer to take further action as stated in Ext.P1, notification, the Range Officer told him that it involved 'some expenses' and hence he did not proceed further in the matter. Petitioners stated that they collected and stacked the fallen trees to avoid theft. 14. The Authorised Officer has taken the view that there is nothing to co-relate the trees in question with patta lands of petitioners. Authorised Officer expressed dismay that trees were falling from 1996 onwards but the trees were collected and stacked some time in 2001 and until then trees were lying in the property but petitioners who are well conversant with the procedure that has to be adopted did not initiate any action until 2001. Authorised Officer also stated that version of petitioners cannot be believed in that there was no damage to other vegetations in the patta lands belonging to them. A further reasoning of the Authorised Officer is that it was quite unlikely that in a small area of patta land, 84 sandal wood trees would have grown. The Authorised Officer also went to the extent of saying that there is nothing on record to show that there is any other sandal wood tree growing in the patta lands of **WP(C) Nos.18493 & 19478/2006** 18 petitioners. Herself and the Conservator conducted inspection of the patta lands but there was no indication of any sandal wood tree being grown in the said lands. 15. So far as inspection allegedly made by the Conservator of Forest and Authorised Officer is concerned, petitioners claimed ignorance as no notice was given to them. There is nothing on record to show that before such inspection (if any) notice was given to the petitioners. The order of Authorised Officer refer to the report of the Range Officer, Shri Rajendran dated 11.03.2003 (seen in the official file of the learned Special Government Pleader - learned counsel for petitioners say that they were not given a copy of any such report). I have gone through the said report dated 11.03.2003 where the Range Officer, Shri Rajendran states that the trees shall be presumed to be Government property and be confiscated to the Government. 16. On the question whether so much sandal wood trees could grow in the patta lands belonging to the petitioners, I stated that the extent of land belonging to the petitioner in W.P.(C) No.18493 of 2006 is about 10.8 acres while in the case of petitioner in W.P.(C) No.19478 of 2006, it is around 2.50 acres. The Tahsildar has stated that in particular places in about an acre, there could be upto 100 sandal wood trees growing. Therefore it is not as if it is surprising to say that 84 trees were growing in the patta lands (altogether, 13 acres). As to the lack of evidence regarding damage to the vegetation is concerned I must bear in mind case of petitioners that it was over a period of few years that the trees fell and the inspection by the officers was sometime in **WP(C) Nos.18493 & 19478/2006** 19 December, 2000 and thereafter. Even the Range Officer conducts an inspection only after 11.07.2001. That at that time no damage was seen to the vegetations on account of falling of trees that cannot be said to be an improbability. 17. I shall refer to Exts.P26 and P27 (in W.P.(C) No.18493 of 2006). Ext.P26 is an application made to the Public Information Officer of the Forest Department under the Right to Information Act seeking information regarding certain matters. In answer to that query the said Officer has issued Ext.P27, reply. It is seen from Ext.P27 that from 1990 onwards there were about 77 applications made to the Department for collecting trees from the patta lands belonging to the respective applicants. It is stated that the trees were collected from patta lands on the basis of certificate issued by the Village Officer, the order of the Revenue Divisional Officer (during the relevant time, certificate of the Tahsildar concerned) and the agreement placed before the DFO. It also states about theft of trees during the said time and there were 196 complaints received in the Forest Office relating to theft of trees from the patta land and other places and during the relevant time, 476 trees were found stolen as per the 196 complaints received in that office. Apart from that, 6951 trees were stolen from the reserve forest. It is stated in answer to question No.4 that during the relevant time (after 1990 till the information was called for in 2008) the Department had collected as many as 13679 sandal wood trees fallen in the wind and rain which were either old or dead. Specific reference was made to the patta land of one Thankamma Cyriac. She owned 0.98.37 heactars of patta land and there was a request from her on 14.12.1999 to proceed in accordance **WP(C) Nos.18493 & 19478/2006** 20 with Ext.P1, notification in respect of 236 trees. Therefore it is not a surprise to say that 84 trees were standing in about 13 acres belonging in the aggregate to the petitioners. It is also reported that in the property of Smt. Thankamma Cyriac there were other dried up sandal wood trees standing. 18. Learned Special Government Pleader has invited my attention to column No.4 of Ext.P27 which refers to the trees being extracted from patta land of Smt.Thankamma Cyriac ( and not fallen trees). Learned Special Government Pleader has invited my attention to Ext.P21 in W.P.(C) No.18493 of 2006 which contained request from Smt.Thankamma Cyriac dated 10.12.1999 where it is stated that 236 trees were “standing” in her patta land (and not fallen). According to the learned Special Government Pleader, request made by Thankamma Cyriac was not in respect of fallen trees and hence the Forest Officials had the opportunity to see dried up trees standing in her property. But, it is seen from Ext.P19 in W.P.(C) No.19478 of 2006, letter dated 06.03.2000 from the Range Officer to the DFO concerned that the 219 trees dried trees were “lying” in the property of Smt.Thankamma Cyriac. Falling of that much trees may have been spread over a period of few years which is not something unknown or uncommon to the Department. In Ext.P18, Authorised Officer has stated that the original patta of petitioners were not produced. But there was no dispute that petitioners were owners in possession of the patta lands which I have stated above. Authorised Officer also was not correct in stating that there was no evidence of sandal wood trees standing in patta lands of petitioners. The Village Officer has stated that he has seen standing sandal wood trees in the **WP(C) Nos.18493 & 19478/2006** 21 patta lands. According to him, at the time of inspection about 50 sandal wood trees were growing in patta lands of petitioners. Therefore, it is not as if there was no sandal wood trees growing in the patta lands of petitioners. On going through Ext.P18, order I find that there was no attempt made by the Authorised Officer to find whether there are materials to be satisfied that any “forest offence” has been committed in relation to the trees in question. The Authorised Officer appears to have started the enquiry presuming that a “forest offence” is committed. This is revealed by the manner in which the Authorised Officer questioned the witnesses. That was not a proper approach the Authorised Officer should have made. 19. Learned District Judge disbelieved case of petitioners for reasons which I have stated above. In fact learned District Judge has gone to the extent of stating that the Tahsildar who is said to have inspected the property is not examined which is factually incorrect. Learned District Judge observed that petitioners did not examine Krishna Pillai who is said to have been an employee of petitioners. The Authorised Officer in Ext.P18 went to the extent of stating about possibility of theft with the help of said Krishna Pillai. If that were the case of the Department, responsibility to examine Krishna Pillai was not on petitioners but on the Department itself. 20. On going through the materials on record, I find nothing on record to hold as speculated or doubted by the Authorised Officer that trees may have been collected from the other patta lands, revenue puramboke or reserve forest as the case may be. I must bear in mind that months before seizure of the trees **WP(C) Nos.18493 & 19478/2006** 22 on 11.07.2001 as per Ext.P9, petitioners had brought to the notice of the officers concerned (as is the procedure) about stacking of fallen trees and requesting action as per Ext.P1, notification. There is no dispute that the procedure to be followed in such matters is the one which petitioners have followed in this case. In such a situation, I am persuaded to think that finding entered by the Authorised Officer that the trees may have been brought from elsewhere and stacked in the property of the petitioners is without any basis, unfounded and is inconsistent with the materials on record. There was no material to be satisfied (and in fact the Authorised Officer also has not claimed so) that any “forest offence” as defined in Section 2(e) of the Act has been committed in relation to the trees in question. On the materials on record the Authorised Officer did not have the jurisdiction to confiscate the trees under Section 61A(2) of the Act. As such Ext.P18, order as confirmed by the learned District Judge cannot be sustained. Resultantly, these Writ Petitions are allowed and the order of confiscation dated 23.02.2004 as confirmed by the learned District Judge in C.M.A.No.39 of 2004 is set aside. I direct the Department to proceed on the basis of the application preferred by the petitioners in accordance with Ext.P1, notification. **THOMAS P.JOSEPH, Judge.** **cks**