W.P.(Crl.) No. 143 of 2022 — John Rafi K J v. State of Kerala & Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944** **WP(CRL.) NO. 143 OF 2022** ## **PETITIONER:** JOHN RAFI K J, AGED 51 YEARS S/O. JOSEPH, KANJIRATHINKAL, PADOOR P.O, PIN 680 524, VENKIDANG VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT. BY ADVS. M.P.MADHAVANKUTTY MATHEW DEVASSI ANANTHAKRISHNAN A. KARTHA ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, FOREST AND WILDLIFE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001. 2 THE DIVISIONAL FOREST OFFICER DIVISIONAL FOREST OFFICE, THRISSUR DIVISION, AYYANTHOL P.O, THRISSUR DISTRICT, PIN 680 003. 3 RANGE FOREST OFFICER, PATTIKKAD FOREST RANGE, PATTIKKAD, THRISSUR, PIN 680 652. BY ADVS. ADVOCATE GENERAL OFFICE KERALA SHRI.T.P.SAJAN, SPL. G.P. (FOREST)() THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 08.03.2023, THE COURT ON 15.03.2023 DELIVERED THE FOLLOWING: W.P.(Crl.)143/2022 2 ## **JUDGMENT** Dated this the 15[th] day of March, 2023 Petitioner is the first accused in O.R. No. 2 of 2021 of Pattikkad Forest Range, Thrissur, registered for the offences punishable under Rules 2(a), 3, 4 and 7 of the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995 ('Rules, 1995' for short), Section 379 of the Indian Penal Code and Sections 52, 61A, 67, 30(1)(c), 76(f) and (g) of the Kerala Forest Act ('Act' for short). 2. The prosecution allegation is that, inspite of having knowledge that the trees standing in the property situated in Sy. No. 1002/02 in Killannoor Village, Thrissur Taluk belong to the Government, the accused clandestinely cut down and removed 84 teak trees in a vehicle. 3. Learned counsel for the petitioner contended that, the property having an extent of 28 ares in Sy. No. 1002/02 of Killannoor village, from where the teak trees were cut, belongs to the petitioner. It is submitted that the predecessor of the W.P.(Crl.)143/2022 3 petitioner obtained the property as per Ext. P3 patta issued under Rule 9(2) of the Kerala Government Land Assignment Rules, 1964. There is no mention about the existence of any trees in the schedule attached to the patta. Therefore, it has to be understood that, as on the date of issuance of patta in the year 1972, no trees were reserved to the Government. The petitioner cannot be proceeded against for cutting trees which are not specified in the schedule to Ext. P3. 4. The further contention is that the offences under the 1995 Rules cannot be charged after introduction of the Kerala Promotion of Tree Growth in Non-forest Areas Act, 2005 ('Act of 2005' for short). Section 6 of the Act of 2005 confers the owners of non-forest land in notified areas with the right to cut and transport any tree, other than sandalwood tree, standing on his land, the restriction in the Proviso to 6(1) is only in respect of trees reserved by the Government at the time of assignment of land or trees standing on any land notified under Section 5 of the Kerala Preservation of Trees Act, 1986 or trees within areas notified by the Custodian under the Kerala Forest (Vesting and Management of the Ecologically W.P.(Crl.)143/2022 4 Fragile Lands) Act, 2003. None of the above contingencies exist in the petitioner's case, there being no reservation of trees at the time of assignment and there being no notification either under the Kerala Preservation of Trees Act, 1986 or the Kerala Forest (Vesting and Management of the Ecologically Fragile Lands) Act, 2003. 5. Learned Special Government Pleader referred to Ext. P3 patta to submit that, teak is one among the species of trees included in the schedule to Ext. P3. Attention is drawn to Section 3 of the Kerala Government Land Assignment Act, 1960, to contend that the assignment under the Act is subject to such restrictions, limitations and conditions as may be prescribed. Ext. P3 patta is issued under Rule 9(2) of the Land Assignment Rules, 1964, for the sole purpose of cultivation. The question whether, assignee has the right to cut and remove trees from the assigned land, if number of trees is not specifically stated in the schedule, was considered and negatived by a Division Bench in Crl.M.C. No. 7347 of 2017. The petitioner's claim that the teak trees cut and removed from the property were grown after the issuance of W.P.(Crl.)143/2022 5 patta is refuted based on the girth measurements of the teak trees felled from the patta land reveals that, out of 84 trees, 30 teak trees are above 150 -300 Cms girth class, 30 trees are above 1000-150 Cms girth class. As 40 to 50 years is required for a teak tree to reach 150 Cms girth class, at least 60 trees were existing at the time of issuance of patta. 6. It is contended that the Rules of 1995 was formulated and issued by exercising the Government's power to make rules. As per Section 76(f) of the Kerala Forest Act, the Government is empowered to make rules for regulating or prohibiting, the felling, lopping, maiming, cutting or otherwise maltreating trees standing on land temporarily or permanently assigned, the right of Government over which has been expressly reserved in the deed of grant or assignment of such land. Therefore, the contention that, with the introduction of the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995 the Rules got superseded is unsustainable. Moreover, under the Act of 2005 also, there is prohibition against cutting of trees reserved by the Government at the time of assignment of the W.P.(Crl.)143/2022 6 land. The question whether prohibition under Section 6 of the Act of 2005 is applicable only with respect to trees standing at the time of issuance of patta was considered by this Court in **Jose v. State of Kerala and Ors.** (2020 (3) KHC 383). 7. The definition of 'forest offence' in Section 2(e) of the Kerala Forest Act, takes in any offence punishable under the Act or the Rules made thereunder. The cutting and removal of trees from land assigned under the Kerala Government Land Assignment Act will definitely attract the offence under Rule 4. 8. As per Section 2(a) of the Kerala Government Land Assignment Act, assignment includes transfer of any land by way of lease and a grant of licence for the use of land. Section 3 confers the Government with the power to assign land either absolutely or subject to such restrictions, limitations and conditions as may be prescribed. Section 7(j) empowers the Government to make rules prescribing the restrictions, limitations and conditions subject to which an assignment can be made. The Kerala Government Land Assignment Rules, 1964 is issued in exercise of the power under Section 7. As per Rule 9(2) patta is to be issued in the form of Appendix II W.P.(Crl.)143/2022 7 to the Rules for occupied lands assigned on registry. Appendix II has a schedule containing the names of the following trees; Teak, Black Wood, Ebony, Sandalwood. As per the first condition in Appendix II, 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. In so far as teak tree is specified in the schedule, any tree belonging to that species, whether standing at the time of issuance of patta or grown subsequent to it vests in the Government. By virtue of Rule 3 of the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995, all trees standing on lands temporarily or permanently assigned, the right over which has been expressly reserved in the deed of grant or order of assignment of such land, is the absolute property of Government. As per Rule 4, no person shall fell, lop or cut such tree without prior sanction in writing from the Divisional Forest Officer. Any person infringing the provisions in Rule 4 is liable to imprisonment for a term which W.P.(Crl.)143/2022 8 may extend to six months or with fine, as per Rule 7. The law being thus clear, there cannot be a contention that, since the exact number of standing trees was not specified in the schedule, the first condition in Ext. P3 or the penal provision in the Rule of 1995 will not apply. 9. As per condition No. 1 of Ext.P3 patta the full right over all the trees within the grant and specified in the schedule vests with 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 subsequently. The impact of the conditions attached to the patta granted as per Appendix II of the Kerala Government Land Assignment Rules was considered in Crl.M.C. No. 7347 of 2017 and answered as under; “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, 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 W.P.(Crl.)143/2022 9 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 specifically mentioned in the schedule.” 10. The contention that the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995 stands superseded by the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 cannot be countenanced, since the purpose behind the Rule and the Act are entirely different. As pointed out by the Special Government Pleader, in a case where even the Act of 2005 was found to apply, this Court refused to accept the contention that only those trees, which were actually standing on the land at the time when the patta was issued, are exempt from the provisions of Section 6(1). The relevant portion of W.P.(Crl.)143/2022 10 ## the judgment in **Jose v. State of Kerala and Ors.** (2020 (2) KHC 383) reads as follows; “9. I have considered the contentions advanced. The admitted fact is that the s specified in the Schedule standing on the land was covered by a Patta issued in the year 1963. The Patta contained a property under grant would vest with the Government. The condition reads as follows: "The full right over all the trees within the grant and specified in the Schedule follows: 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." Though much reliance has been placed upon the nonobstante clause in 5.6(1), I am of the opinion that, in view of the proviso, which states that the provisions of sub-section (1) of S.6 shall not apply to trees, if any, preserved by the Government at the time of assignment of such land, the contention of the strength of the non-obstante clause cannot survive. The learned counsel for the petitioner contends that the said provision only to trees, which were standing on the land at the time of its assignment. I am unable to agree. The condition in Ext.P3 Patta is with regard to trees within the grant and specified in the Schedule, the trees specified in the Schedule being teak, black wood, ebony and sandalwood. This Court in Varkey Chacko (supra) has held as follows: "The purport of the conditions is that if the trees are one of the species mentioned in the schedule, whether the trees were standing on the land at the time of assignment or came into existence subsequent to the assignment, the tree would belong to the Government. The Schedule mentions 4 species of tees namely, teak, black wood, ebony and sandalwood. W.P.(Crl.)143/2022 11 Admittedly this tree is a teak tree. Therefore going by the conditions mentioned above, the full right over all trees within the grant standing on the land at the time of assignment or that may come into existence subsequent to it belongs to the Government." In view of the specific condition contained in the certificate of assignment, I am of the opinion that the contention raised by the learned counsel for the petitioner that only those trees, which were actually standing on the land in question, at the time of when the Patta was issued, are exempt from the provisions of S.6(1) cannot be accepted.” Moreover, the respondents have been able to demonstrate that atleast 60 of the trees cut were in existence as on the date of issuance of patta. Having held so, I find merit in the submission that no one will be benefited by the seized trees being retained at the site till conclusion of the proceedings. Therefore, the competent among the respondents may consider the possibility of auctioning the trees and retaining the amount, subject to the final outcome of the proceedings. The writ petition is dismissed with the above observation. Sd/- ## **V.G.ARUN** ## **JUDGE** sb W.P.(Crl.)143/2022 12 ## **APPENDIX OF WP(CRL.) 143/2022** PETITIONER EXHIBITS |Exhibit P1|TRUE COPY OF THE FOREST OFFENCE SEIZURE| |---|---| ||REPORT (PRELIMINARY) BEFORE THE FOREST RANGE,| ||PATTIKKAD DATED 08.06.2021.| |Exhibit P2|TRUE COPY OF THE SALE DEED DATED 23.01.2021| ||EXECUTED BY ONE ANCY ANTONY BEFORE THE SUB| ||REGISTRAR'S OFFICE, THRISSUR.| |Exhibit P2(a)|TRUE COPY OF THE TAX RECEIPT DATED 02.06.2021| ||ISSUED BY THE TALUK OFFICE, THRISSUR.| |Exhibit P3|TRUE COPY OF THE PATTA DATED 21.09.1972| ||BEARING NO. 386 WITH REGARD TO AN EXTENT OF| ||70 CENTS COMPRISED IN SURVEY NO. 1002/02 OF| ||KILANNOOR VILLAGE, THRISSUR TALUK, THRISSUR| ||DISTRICT.| |Exhibit P4|TRUE COPY OF THE CIRCULAR DATED 11.03.2020| ||BEARING NO. MU3/197/2019 BY THE GOVERNMENT OF| ||KERALA.| |Exhibit P5|TRUE COPY OF THE ORDER DATED 23.11.2021| ||BEARING NO. TA4-5309/2021 ISSUED BY THE| ||DIVISIONAL FOREST OFFICER, THRISSUR DIVISION.| |Exhibit P6|TRUE COPY OF THE INTERIM ORDER DATED| ||22.12.2021 IN W.P.CRL. NO. 457/2021 PASSED BY| ||THIS HON'BLE COURT.| |RESPONDENT EXHIBITS|| |Annexure R2(a)|TRUE COPY OF THE REPORT OF THE VILLAGE| ||OFFICER DATED 14.07.2021| |Annexure R2(b)|PHOTOGRAPH OF THE TEAK LOG| |Annexure R2(b1)|PHOTOGRAPH OF THE TEAK LOG| |Annexure R2(b2)|PHOTOGRAPH OF THE TEAK LOG| |Annexure R2(b3)|PHOTOGRAPH OF THE TEAK LOG| 13 ## W.P.(Crl.)143/2022 Annexure R2(c) TRUE COPY OF THE VALUATION STATEMENT OF THE 66 TEAK LOG SEIZED IN OR 2/2021 Annexure R2(d) TRUE COPY OF THE G.O.(Ms) NO. 67/2015/F&WLD DATED 10/09/2015.