Xavier Philip @ Benny v. Divisional Forest Officer, Munnar Division, Devikulam, IDUKKI District; Forest Range Officer, Adimaly, IDUKKI District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 6TH APRIL 2011 / 16TH CHAITHRA 1933** **WP(C).No. 8828 of 2006(A)** **--------------------------------------** **PETITIONER(S):** **-------------------------** **XAVIER PHILIP @ BENNY, VETTIKKALAYIL HOUSE, VATTAYAR P.O., KALLAR, IDUKKI DISTRICT.** **BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN** **RESPONDENT(S):** **--------------------------** **1. THE DIVISIONAL FOREST OFFICER, MUNNAR DIVISION, DEVIKULAM, IDUKKI DISTRICT.** **2. THE FOREST RANGE OFFICER, ADIMALY, IDUKKI DISTRICT.** **ADV. SRI.RANJITH THAMPAN, SPL.G.P. (FOREST)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/03/2011, THE COURT ON 06/04/2011 DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.8828/2006** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** ## **P1:- COPY OF THE RELEVANT EXTRACT OF REGISTRATION CERTIFICATE OF THE PETITIONER.** ## **P2:- COPY OF THE CERTIFICATE DTD. 26.6.03 ISSUED TO THE PETITIOENR BY THE PALLIVASAL GRAMA PANCHAYAT.** **P3:- COPY OF THE NOC ISSUED TO THE PETITIONER BY THE IST RESPONDENT DTD. 16.8.01.** ## **P4:- COPY OF THE REPLY DTD. 13.8.04 GIVEN BY THE PETITIONER TO THE IST RESPONDENT.** **P5:- COPY OF THE JUDGMENT DTD. 16.8.05 IN CCC. 496/05 OF THIS HONOURABLE COURT.** **P6:- COPY OF THE JUDGMENT DTD. 12.1.06 IN WP(C) NO.26789/05 OF THIS HONOURABLE COURT.** **P7:- COPY OF THE PROCEEDINGS ORDER NO.M1/252/01 DT. 28.2.06 ISSUED BY THE ISR RESPONDENT.** ## **RESPONDENT'S EXHIBITS** ## **R1(a):- COPY OF THE ORDER NO.M7-252/01 DT.D 16.9.03 OF THE DIVISIONAL FOREST OFFICER, MUNNAR.** **R2(a):- COPY OF THE ORDER OF THE IST RESPONDENT DTD. 23.8.2005.** **R2(b):- COPY OF THE MAHAZAR.** ## **TRUE COPY** ## **P.A. TO JUDGE** ## **tss** ## **P.N. RAVINDRAN, J.** ------------------------------- ## **W.P.(C) No.8828 of 2006** ------------------------------- ## **Dated this the 6[th] day of April, 2011** ## **J U D G M E N T** The petitioner is the proprietor of a small scale industrial unit engaged in the manufacture of wooden furniture. Besides the licence from the local authority, he also possessed Ext.P3, No Objection Certificate issued by the first respondent on 16.8.2001. The petitioner states that Sri.James Mathew who was working as Forest Range Officer at Adimaly was on inimical terms with him, as the petitioner did not yield to his illegal demands, that the said officer was placed under suspension on 15.9.2003 on charges relating to illegal cutting and removal of Rosewood trees from the reserve forest, but on account of his previous animosity, he caused a false case to be registered against the petitioner on 2.9.2003 and sent a request to the first respondent to revoke Ext.P3 No Objection Certificate. The first respondent initially cancelled Ext.P3 No Objection Certificate as per Ext.R1(a) order dated 16.9.2003 which was issued without notice to the petitioner. The petitioner challenged the said order by filing W.P. (C) No.32624 of 2003 in this Court. By judgment delivered on 12.7.2004, a learned single Judge of this Court allowed the writ petition on the short ground that before Ext.P3 No Objection W.P.(C) No.8828 of 2006 2 Certificate was revoked, the petitioner was not put on notice or heard. This Court also directed the first respondent to take a fresh decision in the matter, after affording the petitioner an opportunity of being heard, within one month from the date of receipt of a copy of the judgment. 2. The first respondent thereafter issued a notice dated 3.8.2004 calling upon the petitioner to show cause why Ext.P3 No Objection Certificate should not be cancelled. The petitioner submitted Ext.P4 reply dated 13.8.2004. The petitioner was thereafter called to attend a hearing on various dates, viz., on 28.9.2004 and 4.2.2005, but no hearing took place on the said dates. Since no orders were passed within the time limit of one month fixed by this Court in the judgment delivered in W.P.(C) No.32624 of 2003, the petitioner filed C.C.C.No.496 of 2005 praying for appropriate action to be initiated against the first respondent. When the contempt case came up for hearing, the Divisional Forest Officer produced an order dated 3.3.2005 and contended that by the said order, the No Objection Certificate was again cancelled. The petitioner filed a reply affidavit contending that the said order was passed without hearing him and W.P.(C) No.8828 of 2006 3 that it has been issued only with a view to wriggle out of the contempt proceedings. By Ext.P5 judgment delivered on 16.8.2005, a learned single Judge of this Court closed the contempt case reserving liberty with the petitioner to challenge the order passed on 3.3.2005 in appropriate proceedings. The petitioner was also found entitled to costs, which was quantified at Rs.1500/-. The State of Kerala was directed to pay the costs within one month and directed to recover it from the Divisional Forest Officer concerned. The petitioner thereafter filed W.P.(C) No.26789 of 2005 in this Court challenging the order dated 3.3.2005. By Ext.P6 judgment delivered on 12.1.2006, a learned single Judge of this Court allowed the writ petition, quashed the said order and directed the Divisional Forest Officer, Munnar to pass fresh orders in the matter within a period of one month from the date of receipt of a copy of the judgment. Ext.P7 order was thereupon passed on 28.2.2006 cancelling Ext.P3 No Objection Certificate. Ext.P7 is under challenge in this writ petition. 3. The petitioner contends that Ext.P7 proceeds on the erroneous assumption that he is running a saw mill, that he has not violated the conditions mentioned in Ext.P3, that no grounds exists to W.P.(C) No.8828 of 2006 4 cancel the No Objection Certificate, that there has been total nonapplication of mind and therefore Ext.P7 is liable to be set aside. The petitioner also contends that the first respondent has not adverted to any of the material contentions raised by him in Ext.P4 statement, especially the contention that he was falsely implicated in O.R.No.21 of 2003. 4. A counter affidavit dated 29.6.2007 has been filed on behalf of respondents 1 and 2. It is stated that on getting reliable information on 2.9.2003, a raid was conducted in the business premises of the petitioner; that on being interrogated, the staff of the petitioner revealed that sawn materials were brought to the petitioner's establishment by two people viz., Anil and Roy in a jeep bearing registration No.KL-7/H 3174; that on verification, it was found that the materials were not covered by any documents; that they were seized and a forest offence was registered; that on the basis of the statement given by the staff of the petitioner, the vehicle bearing registration No. KL-7/H 3174 was seized and Sri.Roy was arrested; that thereafter as the petitioner was found to have dealt with illegal timber, a request for cancellation of the No Objection Certificate was W.P.(C) No.8828 of 2006 5 made; that by Ext.R1(a) order dated 16.9.2003, the No Objection Certificate was cancelled and that the revised orders evidenced by Ext.P7 was passed after Ext.R1(a) was quashed by this Court on the ground that before it was passed, the petitioner was not put on notice or heard. It is also stated that the jeep bearing registration No. KL7/H 3174 which was seized in connection with the forest offence was confiscated by the Department as per the Forest Act; that the petitioner's role in the commission of the forest offence, O.R.No.21 of 2003 of Machiplavu Forest Station, is very clear and that the No Objection Certificate was validly cancelled as the petitioner had engaged in illicit handling of timber. 5. The petitioner has filed a reply affidavit denying his involvement in the forest offence. He has also stated therein that though O.R.No.21 of 2003 of Machiplavu Forest Station was registered in the year 2003, the final report has not so far been filed and that the distance between the place from where timber is alleged to have been illegally cut and his furniture unit is 65 Kms. and that there are 5 forest stations and one check post en route. 6. When this writ petition came up for hearing before me W.P.(C) No.8828 of 2006 6 on 10.2.2009, having regard to the averments in the reply affidavit filed by the petitioner, I directed the respondents to file an affidavit disclosing the steps taken pursuant to the registration of O.R.No.21 of 2003 of Machiplavu Forest Station. The respondents were also directed to produce a copy of the final report, if any, filed in O.R.No.21 of 2003, a copy of the mahazar prepared at the time of seizure of timber from the petitioner's premises on 2.9.2003 and the order, if any, passed under section 61A of the Kerala Forest Act, 1961 in relation to the seized timber and the vehicle used to transport the timber. The respondents were also directed to produce the files leading to Ext.P7. 7. Pursuant to the said direction, the second respondent has sworn to an affidavit dated 4.3.2009. In paragraph 3 thereof, it is stated that O.R.No.21 of 2003 is still pending investigation and no charge sheet has been submitted in the court. It is also stated that the thondi articles and the lorry have not been seized and therefore, the charge sheet could not be submitted. It is also stated that investigation is in the final stages and report will be submitted as expeditiously as possible, after the investigation is over. As regards W.P.(C) No.8828 of 2006 7 the proceedings, if any, initiated under section 61A of the Kerala Forest Act for confiscation of the jeep bearing registration No. KL-7/H 3174, it is stated that though Ext.R2(a) order dated 23.8.2005 was passed by the Divisional Forest Officer confiscating the said jeep, that order was set aside in appeal by the District Court and the matter remanded to the Divisional Forest Officer for fresh consideration and disposal. It is also stated that thereafter revised orders have not been passed. The date on which Ext.R2(a) order was set aside by the appellate court and the present stage of the proceedings are however not disclosed. Along with the additional counter affidavit, a copy of the mahazar prepared on 2.9.2003, when timber was seized from the petitioner's premises is produced as Ext.R2(b). 8. I heard Sri.K.Jaju Babu, the learned counsel appearing for the petitioner and Sri.P.M.Poulose, the learned Special Government Pleader appearing for the respondents. I have also gone through the pleadings and the materials on record. Ext.P7 order which is impugned in this writ petition proceeds on the basis that the petitioner is running a saw mill using a re-saw and band saw, when W.P.(C) No.8828 of 2006 8 the No Objection Certificate is one issued for running a furniture unit in the traditional way. The order also proceeds to state that on 2.9.2003 sawn teak materials which were stocked without any valid documents in the petitioner's furniture unit were seized and taken into departmental custody. It is also stated that no one came forward to claim ownership over the timber seized and that the petitioner could not satisfactorily explain the source of the seized timber. It is for these reasons that the first respondent has in Ext.P7 held that the petitioner has violated the conditions stipulated in Ext.P3 No Objection Certificate. The first respondent held in Ext.P7 also stated that the petitioner's establishment which is described as a saw mill, is situated within the minimum distance of 5 kms., stipulated by the Apex Court in the decision in **T.N.Godavarman Thirumulpad etc. v. Union of India and others** (AIR 1997 SC 1228). In Ext.P3 mahazar prepared at the time of seizure also, the petitioner's establishment is stated to be a saw mill. However, Annexure- R2(a) order dated 23.8.2005 issued by the Divisional Forest Officer confiscating the jeep KL-7H-3174 specifically recites that the said jeep was used to transport illegally fell timber to the furniture making unit W.P.(C) No.8828 of 2006 9 at Kallar owned by the petitioner. The value of the timber seized from the petitioner's establishment is stated to be approximately Rs.20,000/-. The respondents have no case that the petitioner is not engaged in the manufacture and sale of furniture. From the statement in Annexure – R2(a) order, it is evident that the petitioner was running a furniture manufacturing unit and not a saw mill. 9. Ext.P7 the impugned order also refers to the fact that steps were taken to cancel Ext.P3 No Objection Certificate following the registration of O.R.No.21 of 2003 of Machiplavu Police Station based on the recommendations made by the Forest Range Officer, Adimali in his letter dated 12.9.2003. It is however not in dispute that though O.R.No.21 of 2003 was registered on 2.9.2003, till date, the final report has not been filed, even after the expiry of more than 7 years. It is also stated that timber which is the subject matter of O.R.NO.21 of 2003 and the lorry used to transport the same have not so far been seized and therefore the charge sheet has not been filed. The respondents have no case that the petitioner is the owner of the lorry . Annexure R2(a) order of confiscation passed on 23.8.2005 by the Divisional Forest Officer which was later set aside by the W.P.(C) No.8828 of 2006 10 District Court in appeal discloses that the vehicles involved in the unauthorised cutting and removal of teak wood from the reserve forest are two jeeps bearing registration numbers KL-7H-3174 and KL-6-882. It is stated with reference to the finding on issue Nos. 3 and 4 in Annexure R2(a) order that jeep bearing registration No.KL6-882 has not so far been traced out. It is also not in dispute that the Divisional Forest Officer did not issue notice to the petitioner or examine him as a witness in the enquiry which led to Annexure – R2 (a) order. Annexure -R2(a) order has also been admittedly set aside by the District Court in appeal filed by the owner of the jeep bearing registration No.KL-7H-3174. The Divisional Forest Officer has also not issued an order confiscating the seized timber with notice to the petitioner. Though in Annexure R2(a) order, the Divisional Forest Officer has stated that the timber seized from the petitioner's establishment on 2.9.2003 is Government property, such a finding was not arrived at with notice to the petitioner. There is also no finding in Annexure R2(a) order to the effect that the petitioner had any role to play in the illicit felling of teak wood or its transportation to his establishment. In other words, apart from the fact that a few W.P.(C) No.8828 of 2006 11 pieces of teak wood valued at the rate of Rs.20,000/- were allegedly seized from the petitioner's establishment, in his absence, there is no material on record to connect the petitioner with the illicit felling of timber from the reserve forest or its transportation to the petitioner's establishment. Ext.R2(b) mahazar would only show that the timber seized from the petitioner's establishment was brought in a jeep bearing registration No. KL-7H-3174. 10. The petitioner has been proceeded against only for the reason that he has not produced any document in respect of the few pieces of teak wood timber of the value of Rs.20,000/- that was seized from his establishment on 2.9.2003. It is also stated that no one has come forward claiming ownership of the timber. In my opinion, in view of the admitted fact that the petitioner is running a furniture manufacturing unit and timber was seized from his establishment at a time when he was not present in the establishment, and his statement was also not recorded by the forest officials, it cannot be said that the petitioner had knowingly violated the terms and conditions of the No Objection Certificate. In this context, it is relevant to note that even after the expiry of more than W.P.(C) No.8828 of 2006 12 7 years from the date of registration of O.R.No.21 of 2003 of Machiplavu Forest Station, and the filing of a preliminary report under section 61 of the Kerala Forest Act, the investigation has not so far been completed and the final report has not been submitted. Further, the fact remains that the order of confiscation has also been set aside. The grounds on which the order of confiscation was set aside have also not been disclosed. In such circumstances, I am of the opinion that the mere fact that teak wood worth Rs.20,000/- was seized from the petitioner's establishment, at the time when he was not present, following the registration of O.R.No.21 of 2003 of Machiplavu Forest Station cannot be a reason to hold that he has violated the terms and conditions in Ext.P3 No Objection Certificate. Further, there is also no statement in Ext.R2(b) mahazar to the effect that the teak wood seized from the petitioner's establishment is not reflected in the stock register. In Ext.P7 also, there is no such allegation. The respondents have also no case that the petitioner is not maintaining a stock register. They have also not been able to establish the fact that he has used the illicitly fell timber to manufacture furniture or he himself was personally responsible for the W.P.(C) No.8828 of 2006 13 illicit felling of teak. In the facts and circumstances of the case, I am satisfied that Ext.P7 order passed by the first respondent cancelling the No Objection Certificate issued to the petitioner cannot be sustained. I accordingly allow the writ petition and quash Ext.P7. The first respondent shall issue consequential orders renewing Ext.P3 Objection Certificate for a period of 5 years within one month from the date on which the petitioner produces a certified copy of this judgment before him. **P.N. RAVINDRAN, JUDGE.** nj.