Raju Sebastian and Kesavan K.K v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY ,THE 14TH DAY OF SEPTEMBER 2018 / 23RD BHADRA, 1940** **Crl.MC.No. 7347 of 2017** **OR No. 5/2017 OF Pariyaram Forest Range Office, Thrissur** ## **PETITIONERS/ACCUSED 1 & 2:** - **1 RAJU SEBASTIAN S/O. DEVASSIA, AGED 57 YEARS,MEEMPOORU HOUSE, CHAZHPPANKUZHI, RANDUKAI, KUTTICHIRA P.O, PIN 680 724,THRISSUR DISTRICT** **2 KESAVAN K.K S/O.KRISHNAN, AGED 53 YEARS,KAIPUZHA HOUSE, CHAZHPPANKUZHI, RANDUKAI,KUTTICHIRA P.O, PIN 680 724,THRISSUR DISTRICT** **BY ADV. SRI.WILSON URMESE** ## **RESPONDENT/STATE:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE FOREST RANGE OFFICER, PARIYARAM, CHALAKUDY, THRISSUR DISTRICT** **BY ADV. SRI.SANDESH RAJA.K., SPL. G.P. (FOREST)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12/09/2018, THE COURT ON 14/9/2018 PASSED THE FOLLOWING:** Crl.M.C.No.7347/17 -:2:- **==> picture [48 x 11] intentionally omitted <==** ## **O R D E R** ## _**Shaffique, J.**_ This Crl.M.C had been filed seeking to quash Annexure A report filed by the Forest Department before the Judicial First Class Magistrate Court, Chalakudy. The allegation is that petitioners have unauthorisedly cut and removed two teak trees which were standing in the property of the first petitioner. The offence alleged are punishable under Sections 52(1) and 61A of the Kerala Forest Act, 1961 and Rules 2, 3 and 7 of the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995 (hereinafter referred to as the 1995 Rules). The contention urged by the petitioners was that in so far as there was no prohibition under the patta granted in favour of the petitioners, the action taken by the Forest Department is erroneous. Annexure B had been produced which according to the petitioners is the patta dated Crl.M.C.No.7347/17 -:3:- 8/2/1979 for assignment of the aforesaid land. It is stated that subsequent to the issuance of patta, first petitioner had sold the trees in question to the 2[nd] petitioner. When the matter was heard by the learned Single Judge, it was referred by order dated 7/11/2017 _inter alia_ observing that the opinion of the learned Judge is in conflict with the decision in _**Augustine Mathew v. State of Kerala**_ (2009 (3) KHC 179). That apart, the counsel had raised a contention that when Rule 3 of the 1995 Rules does not prohibit cutting and removal of trees subsequently grown in the property, the patta conditions incorporating such a provision is bad in law. 2. The whole question depends upon interpretation of the terms of patta. Annexure B is the patta issued in the name of one Kuttan. The property was assigned in the name of Kuttan and after his death, the sole legal heir assigned the property in favour of one Sri.George and his wife Smt.Chechamma, who settled it in favour of their daughter Smt.Mary. By subsequent transfers, the property devolved on Sri.Joseph @ Kochouseph. The first Crl.M.C.No.7347/17 ## -:4:- petitioner is the son-in-law of late Joseph and he is looking after the said property. As per the said patta dated 8/2/1979, an extent of 2.41 acres of land had been assigned subject to certain conditions. Conditions 1 and 2 are relevant, which reads as under:- _“1. 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._ _2. 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 (1) above and removing them, if necessary.”_ 3. In the schedule to the patta, name of the trees has been mentioned as teak, black wood, ebony and sandal wood. There cannot be any dispute regarding the validity of clauses (1) and (2). The only contention urged by the learned counsel is that the number of trees and other particulars in the schedule had not been filled up, which indicates that there were no trees like teak, Crl.M.C.No.7347/17 -:5:- black wood, ebony or sandalwood in the property. It also indicates that the Government had not reserved any trees as stated in clause (1) of the conditions. We do not think that we can agree with the said submission. When the name of trees had been mentioned in the schedule to the patta, it apparently indicates the nature of trees which cannot be utilized by the petitioners. The full right over the trees within the grant and specified in the schedule vests with the Government. Merely for the reason that the number of trees had not been mentioned, it does not indicate that there were no such trees. Petitioners do not have a case that the trees were subsequently grown. Those were all trees standing at the time of issuance of the patta itself. In fact, a reading of Clause (1) of the conditions would show that all the trees standing on the land at the time of assignment or that may come into existence subsequent to it vest in the Government. Therefore, we have no hesitation to hold that despite non mentioning of the number of trees in the schedule, the petitioners have a right to cut and remove the trees which are Crl.M.C.No.7347/17 -:6:- specifically mentioned in the schedule. In _**Augustine Mathew's case**_ (supra), the learned Single Judge of this Court proceeded on the basis that there was no reservation clause and therefore it was held that the property was assigned in favour of the petitioners without reserving any right. What was the factual situation in _**Augustine Mathew's case**_ (supra) cannot be deduced from the said judgment. That case proceeded on an admitted submission that the documents did not indicate any such reservation clause. But, in the present case, what we find is that clauses (1) and (2) in the patta conditions clearly restricts the rights of the petitioners as far as cutting and removal of trees mentioned in the schedule are concerned. A different view cannot be taken. Therefore, we are of the view that the factual situation in _**Augustine Mathew's case**_ (supra) is totally different from the factual situation in the present case. Therefore, _**Augustine Mathew**_ (supra) does not apply to the fact situation. 4. Yet another contention urged by the learned counsel for the petitioners is with reference to Rule 3 of the 1995 Rules. Crl.M.C.No.7347/17 ## -:7:- Rule 3 reads as under” _“_ _**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.”_ 5. The contention urged is that when Rule 3 clearly indicates that the trees standing on lands which are assigned shall be the absolute property of the Government, there cannot be any restriction to cut and remove subsequently grown trees. But the conditions mentioned in the patta contains a clause restricting cutting and removal of trees which are subsequently grown also. 6. First of all, petitioners do not have a case that Annexure A relates to trees which were grown subsequently Therefore, such a contention is not germane for consideration as far as the present case is concerned. Even otherwise, Rule 3 is only a vesting provision and when forest land is being assigned, it is for the Government to impose conditions. At any rate, since ## Crl.M.C.No.7347/17 -:8:- such an issue does not arise for consideration in the present case, we do not want to give a final decision in the matter. It shall be open for the petitioners to take up such issues in an appropriate case. 7. Learned Government Pleader placed before us copy of the judgment dated WP(C) No.804/2006 wherein learned Single Judge of this Court had considered a similar clause and the same view had been taken. 8. In the light of the above findings, we are of the view that the grounds urged in Crl.M.C. are not acceptable and it deserves to be dismissed. 9. Taking into consideration the aforesaid factual circumstances, we answer the reference as under:- (i) _**Augustine Mathew's case**_ (supra) has no application to the facts of the present case. (ii) The contentions urged by the petitioners in the Crl.M.C. are not sustainable. (iii) It shall be open for the petitioners to appear before the Crl.M.C.No.7347/17 -:9:- learned Magistrate and contest the case in accordance with law. They shall also be at liberty to invoke a compounding provision, if applicable. ## Crl.M.C is dismissed. **Sd/A.M.SHAFFIQUE JUDGE SdP.SOMARAJAN** Rp //True Copy// **JUDGE** PS to Judge Crl.M.C.No.7347/17 -:10:- ## **APPENDIX** **PETITIONERS' EXHIBITS:** **ANNEXURE A** **TRUE COPY OF THE REPORT/MAHAZAR IN O.R NO 5/2017 OF THE PARIYARAM FOREST RANGE** **ANNEXURE B** **TRUE COPY OF THE PATTA NO LA(P) 1676/KDY DATED 08-02-79 OF THE SPECIAL TAHASILDAR (LAND ASSIGNMENT) MUKUNDAPURAM** **ANNEXURE C TRUE COPY OF THE SALE DEED NO 2736/2005 OF THE SRO, CHALAKUDY** Rp //True Copy PS to Judge//