The Divisional Forest Officer, Munnar vs P.J. Antony, Etc

2024 INSC 412 Non-reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICITON

CIVIL APPEAL NOS. 9751-9752 OF 2011

The Divisional Forest Officer, Munnar, Kerala, and another ….. Appellants

Versus

P.J. Antony, etc. ….. Respondents

JUDGMENT

SANJAY KUMAR, J

1. These appeals arise out of the judgment dated 13.08.2010 passed

by the High Court of Kerala at Ernakulam in W.P. (C) Nos. 18493 and

19478 of 2006. Thereby, the High Court allowed the writ petitions and

set aside the order of confiscation of sandalwood dated 23.02.2004,

which had been confirmed by the learned District Judge, Thodupuzha, in

C.M.A. No. 39 of 2004. In consequence, the Forest Department of the Signature Not Verified Digitally signed by Rajni Mukhi

State was directed to proceed on the basis of the application made by Date: 2024.05.14 15:51:20 IST Reason:

the writ petitioners in accordance with Government Order dated

1 03.04.1973. Aggrieved by this judgment and the directions therein, the

State of Kerala and its Divisional Forest Officer, Munnar, filed these

appeals.

2. P.J. Antony and Cheriyan Kuruvila, the respondents in the present

appeals, were the petitioners in W.P. (C) Nos. 18493 and 19478 of 2006

respectively before the High Court. P.J. Antony claimed ownership and

possession over 4.70 hectares of land in Survey Nos. 86/3 and 86/4 of

Marayoor Village while Cheriyan Kuruvila claimed title and possession

over an extent of 1.09 hectares in Survey No. 86/5 of Marayoor Village.

P.J. Antony submitted application dated 13.12.2000 to the Tahsildar,

Devikulam, for issuance of a certificate for handing over the dried and

fallen sandalwood trees in his land to the Forest Department. A similar

application was also filed by Cheriyan Kuruvila. These applications were

made in accordance with the scheme envisaged under G.O (MS) No.

126/773/AD, Agriculture (Forest) Department, dated 03.04.1973, which

empowered the Forest Department to auction sandalwood trees grown

on private lands and pay 70% of the sale proceeds to the landowners

leaving the remaining 30% with the Department.

3. Thereupon, the Taluk Surveyor inspected the lands on 22.01.2001

and submitted a report, confirming that there were sandalwood trees

fallen and lying in the said lands. He also prepared rough sketches of

the topography of the lands in question, indicating therein the number

2 and the location of the sandalwood trees found by him. In Survey No.

86/3, he confirmed that 16 sandalwood trees were lying dried and fallen,

while in Survey No. 86/4, there were 34 such trees. In all, 50

sandalwood trees were stated to have been found in P.J. Antony’s land,

dried and fallen. As regards Survey No. 86/5, pertaining to Cheriyan

Kuruvila, the Taluk Surveyor confirmed that there were 26 sandalwood

trees lying dried and fallen therein. The location of these trees was also

indicated in the rough sketch. Earlier thereto, the Village Officer

inspected the lands on 10.01.2001 and he prepared a tabular statement

indicating the details of the sandalwood found, including the dimensions

thereof. The Tahsildar, Devikulam, addressed letter dated 29.01.2001 to

the Village Officer, Marayoor, in the context of the applications

submitted, referring to the Village Officer’s Report dated 10.01.2001 and

the Taluk Surveyor’s Report dated 23.01.2001, and directed that

necessary Village Certificates could be legally issued in relation to the 50

sandalwood trees found in a dried and fallen condition in the residential

property comprised in old Survey No. 30/1. A similar order was passed in

relation to the application of Cheriyan Kuruvila. Thereupon, Certificate

dated 20.03.2001 was issued by the Village Officer, Marayoor, noting

that the lands of P.J. Antony in Survey Nos. 86/3 and 86/4 fall in old

Survey No. 30/1 and that 50 sandalwood trees were found in a dried and

fallen condition therein and certified that necessary steps could be taken

3 for conducting an auction in relation to those trees. He also confirmed

therein that the certificate was issued for the purpose of producing the

same before the Range Officer, Marayoor Forest. A similar certificate

was issued in relation to the 26 sandalwood trees, lying dried and fallen

in the land of Cheriyan Kuruvila in Survey No. 86/5 of Marayoor Village.

4. Thereupon, P.J. Antony and Cheriyan Kuruvila submitted a joint

application on 25.03.2001 to the Divisional Forest Officer, Devikulam,

through the Range Officer, Marayoor Forest. Therein, they stated the

details of the sandalwood trees lying in their respective properties and

requested the authorities to inspect the same to facilitate their entering

into an agreement with the Forest Department. They enclosed therewith

the Survey Sketches dated 22.01.2001 of the Taluk Surveyor,

Devikulam, along with the Certificates dated 20.03.2001 issued by the

Village Officer, Marayoor. It is their case that, as no action was taken

upon the said application, they were constrained to stack the dried and

fallen sandalwood trees at one place in the property of P.J. Antony.

5. While so, by Mahazar dated 11.07.2001, the Range Officer,

Marayoor Forest, seized the sandalwood trees. Therein, he stated that,

on getting secret information that sandalwood trees had been illegally

uprooted and kept in the house of P.J. Antony, an inspection was

conducted and 77 number of sandalwood trees, 41 pieces of

sandalwood, 7 sandalwood stumps and 56 small roots were found

4 illegally kept in the backside of the courtyard of House No. 1 in Ward No.

5 of Marayoor Panchayat. The details of the seized sandalwood were set

out at length. Thereupon, the Divisional Forest Officer, Munnar, passed

confiscation order dated 16.01.2002 in relation to the sandalwood seized

on 11.07.2001. This order was set aside by the Conservator of Forest,

High Range Circle, Kottayam, vide order dated 25.11.2002 in exercise of

revisional power, and the Divisional Forest Officer, Munnar, was directed

to conduct a de novo enquiry in the matter and pass appropriate orders.

In consequence, the Divisional Forest Officer, Munnar, reconsidered the

case but again confirmed the seizure and confiscation of the

sandalwood, by her order dated 23.02.2004. Aggrieved thereby, P.J.

Antony and Cheriyan Kuruvila filed C.M.A. No. 39 of 2004 before the

learned District Judge, Thodupuzha. By Judgment dated 05.11.2005

passed therein, the learned District Judge confirmed the confiscation

order and dismissed their appeal. This led to their filing writ petitions

before the High Court of Kerala, which resulted in the passing of the

impugned judgment.

6. What weighed primarily with the learned Judge in allowing the writ

petitions was that there was no evidence of any ‘forest offence’ having

been committed, whereby the power of confiscation under Section 61A

(2) of the Kerala Forest Act, 1961 (for brevity, ‘the Forest Act’) could

have been invoked. The learned Judge took note of the steps taken by

5 P.J. Antony and Cheriyan Kuruvila before the Revenue officials and the

fact that an application was submitted by them to the Range Officer,

Marayoor Forest, and observed that the statements in the Mahazar

dated 11.07.2001 and in the order of confiscation that, on getting secret

information that sandalwood trees were illegally stacked in the premises

of P.J. Antony, the Range Officer had effected the seizure, were not

acceptable on facts. The learned Judge noted that, during the course of

the enquiry, the Range Officer had himself admitted receipt of the

application submitted by P.J. Antony and Cheriyan Kuruvila but claimed

that he could not proceed with the matter on account of financial

difficulties of the department. It was also taken note of that, after the

seizure of the sandalwood, the Range Officer registered a case alleging

an offence under the Kerala Preservation of Trees Act, 1986 (for brevity,

‘the KPT Act’). Support in this regard was drawn from the statement of

the Range Officer that the trees were ‘unauthorizedly’ stacked in the

premises. Further, the learned Judge was not persuaded to agree with

the Forest Department that a presumption could be drawn under Section

69 of the Forest Act, as to the commission of a ‘forest offence’. The

learned Judge was of the opinion that the offence, if any, would only be

in relation to the provisions of the KPT Act and, therefore, the same

could not be treated as a ‘forest offence’ under the Forest Act. The

learned Judge also noted that the presumption under Section 69 of the

6 Forest Act could only be in relation to ‘forest produce’ being treated as

the property of the Central or State Governments and there could be no

presumption thereunder regarding commission of a ‘forest offence’. The

learned Judge was not prepared to accept that the moving of the trees,

by itself, would amount to a violation of Rule 3 of the Kerala Forest

Produce Transit Rules, 1975, whereby it could be held that a ‘forest

offence’ was committed, as the lands in question belonged to P.J. Antony

and Cheriyan Kuruvila, who were closely related to each other, and were

adjacent lands. The contention of the Forest Department that the

sandalwood may have been collected from other patta lands or revenue

poramboke or reserved forest lands was rejected by the learned Judge,

as months before the seizure on 11.07.2001, P.J. Antony and Cheriyan

Kuruvila had informed the Revenue officials about the trees and sought

necessary documentation to approach the Forest Department to

undertake sale of the trees. It is on this reasoning that the learned Judge

set aside the confiscation order which had been confirmed in appeal by

the learned District Judge, Thodupuzha, in C.M.A. No. 39 of 2004.

7. The confiscation order dated 23.02.2004 reflects that P.J. Antony

and Cheriyan Kuruvila had to approach the High Court at every turn to

ensure that a proper hearing was afforded to them. So much so, that

they had to obtain an order from the High Court even for examination of

the Range Officer, Marayoor Forest, to whom they had submitted their

7 application. Further, we may note that the Divisional Forest Officer,

having extracted the statements made by the Tahsildar, the Taluk

Surveyor and the Village Officer, brushed them aside nonchalantly,

though nothing worth the name was elicited in their cross-examination to

dilute what they had stated, in the context of their inspection of the lands

in question and their confirmation that they had found 76 fallen and dried

sandalwood trees in those lands. The documents of the Revenue

officials were rejected on mere surmises and by misreading the contents

thereof. On that basis, the Divisional Forest Officer baldly concluded that

the documents were insufficient to correlate the sandalwood trees with

the settlement patta lands and they did not prove the ownership of P.J.

Antony and Cheriyan Kuruvila over the sandalwood. Surprisingly, though

the Mahazar dated 11.07.2001 categorically mentioned the number of

trees seized as 77, the Divisional Forest Officer enhanced the figure to

84 sandalwood trees with no logical basis therefor. Further, she went to

the extent of doubting the ownership of P.J. Antony and Cheriyan

Kuruvila over the lands in question, which was entirely beyond her ken.

This speculation on her part was despite the clear certification by the

Revenue officials that the subject lands were patta lands belonging to

P.J. Antony and Cheriyan Kuruvila. In appeal, the learned District Judge

was more influenced by the fact that the sandalwood in question had

been stacked in the backyard of P.J. Antony’s house without

8 authorization. Noting incorrectly that the Tahsildar had not been

examined, the learned District Judge affirmed the self-serving findings of

the District Divisional Forest Officer, Munnar.

8. Though it was vehemently contended before us on behalf of the

appellants that there is no acceptable explanation from P.J. Antony and

Cheriyan Kuruvila as to how the sandalwood trees had fallen down and

that there were no whirlwinds in the year 1996, as claimed by them, we

are of the opinion that much would not turn upon this factual aspect. It is

an admitted fact that earlier, during the year 1995, sandalwood trees

which had grown in the lands of P.J. Antony were sold in consultation

with the Forest Department as per the Government’s scheme. This fact

is sufficient to indicate that sandalwood trees did grow in these lands.

The documentation of the trees found in these lands in the year 2001,

certified by the Revenue officials, is not liable to be rejected or eschewed

as the Forest Department was unable to elicit anything to the contrary in

the cross-examination of these officials.

9. More damaging is the fact that Udaykumar, Range Officer,

Marayoor Forest, who had received the application submitted by P.J.

Antony and Cheriyan Kuruvila on 25.03.2001, admitted his signature

therein, affixed in proof of his having received the same. During his chief

examination, he stated that he had forwarded the said application with a

covering letter to the Divisional Forest Officer for sanction and necessary

9 further action, but he had not received any reply. He conceded that the

Department’s being in a financial crisis may have been the reason for no

further proceeding being initiated. He confirmed that the certificates

issued by the Village Officer had been submitted along with the

application. He also affirmed that collection of the trees from various

places and stacking them at one place was in violation of the KPT Act.

Conveniently, during his cross-examination, he gave evasive replies as

to the forwarding of the application of P.J. Antony and Cheriyan Kuruvila

to the Divisional Forest Officer, but his admissions are sufficiently

damaging in themselves. Those admissions are more than enough to

decimate the case sought to be put forth by the Forest Department that

a ‘forest offence’ was committed by P.J. Antony and Cheriyan Kuruvila.

10. Be it noted that Sections 52 and 61A of the Forest Act, dealing with

seizure and confiscation of sandalwood etc., require the officer

concerned to come to the conclusion that there was a ‘reason to believe’

that a ‘forest offence’ has been committed. Section 2(e) of the Forest Act

defines a ‘forest offence’ to mean an offence punishable under the

Forest Act or any Rule made thereunder. However, it is an admitted fact

that the offence, if any, committed by P.J. Antony and Cheriyan Kuruvila

in relation to the movement of the fallen and dried sandalwood, so as to

stack it at one place, would be relatable to the KPT Act and would not

constitute an offence under the Forest Act. Even at this stage, there is no

10 answer forthcoming from the Forest Department as to how a ‘forest

offence’ is made out in the case on hand.

11. A feeble attempt was made by the Forest Department to claim that

a presumption would arise under Section 69 of the Forest Act, whereby

commission of a ‘forest offence’ could be inferred, but we are not

persuaded to agree. Section 69 merely states that, when a question

arises as to whether any ‘forest produce’ is the property of the Central or

State Governments, such produce shall be presumed to be the property

of the Central Government or State Government, as the case may be,

until the contrary is proved. In Bharath Booshan Aggarwal vs. State of

Kerala1, this Court observed that the presumption under Section 69 of

the Forest Act is a remarkable one and the burden of proving the

foundational facts, which would give rise to the presumption, would be

upon the prosecution. In the case on hand, the contrary to such

presumption is adequately proved beyond reasonable doubt. The joint

application dated 25.03.2001 made by P.J. Antony and Cheriyan

Kuruvila, duly supported and confirmed by the documentation of the

Revenue officials, are sufficient to show that these sandalwood trees

belonged to them.

12. Further, as was pointed out by this Court in Aslam Mohammad

Merchant vs. Competent Authority and others 2, whenever a statute 1 2021 SCC OnLine SC 881 2 (2008) 14 SCC 186

11 provides for ‘reason to believe’, either the reasons should appear on the

face of the notice or they must be available in the materials which are

placed before the authority. On similar lines, in N. Nagendra Rao & Co.

vs. State of Andhra Pradesh 3, this Court observed that even though

the formation of an opinion as to the expression ‘reason to believe’, may

be subjective, it must be based on material on the record and cannot be

arbitrary, capricious or whimsical. Even before us, the Forest

Department has no cogent basis for its arguments and contentions and

would base its case on the speculative surmise that the sandalwood may

have been brought to the lands of P.J. Antony and Cheriyan Kuruvila

from reserved forest lands or from elsewhere. No material whatsoever is

available with the Forest Department to support such an argument.

13. It is indeed surprising, if not shocking, that the Forest Department

in the State of Kerala had not maintained a record of the sandalwood

trees growing in reserved forest lands and also private patta lands.

There was no marking of such trees to identify them for the purpose of

such record. Our attention was drawn by the appellants themselves to

the Division Bench judgment dated 27.06.2006 of the High Court of

Kerala at Ernakulam in OP No. 20858 of 2001, filed in public interest by

a voluntary organization, viz., Nature Lover’s Movement, Thiruvankulam.

This petition was filed in the context of illegal felling and removal of

3 (1994) 6 SCC 205

12 sandalwood trees from the forest lands in Marayoor and Chinnar Forest

Ranges as well as adjacent villages. A departmental enquiry was sought

against the Forest Officers and staff of Marayoor and Chinnar Forest

Ranges in Munnar Forest Division in this regard. The Division Bench

directed the constitution of a monitoring cell headed by the Chief

Conservator of Forest, Vigilance, consisting of officers of integrity and

uprightness, and also the numbering and marking of all sandalwood

trees. It is in this context, perhaps, that the failure of the Forest

Department in keeping track of and maintaining a clear record of the

sandalwood trees in the year 2001 needs to be understood.

14. Viewed thus, we are of the opinion that the learned Judge of the

High Court of Kerala at Ernakulam was fully justified, on facts and in law,

in setting aside the confiscation order dated 23.02.2004 along with the

judgment dated 05.11.2005 in C.M.A. No. 39 of 2004 of the learned

District Judge, Thodupuzha, confirming the same, and directing further

steps to be taken as per the scheme obtaining in G.O (MS) No.

126/73/AD, Agriculture (Forest) Department, dated 03.04.1973, issued

by the Government of Kerala.

These appeals are, therefore, utterly devoid of merit and are

accordingly dismissed. The Forest Department shall proceed in

accordance with the Government’s scheme and conclude the same

13 expeditiously and, in any event, not later than three months from the

date of receipt of a copy of this judgment.

Though eminently deserving, we desist from saddling the

appellants with costs. Parties shall bear their respective costs.

Pending applications, if any, shall also stand dismissed.

………………………,J (A.S. BOPANNA)

……………………….,J (SANJAY KUMAR) May 14, 2024;

New Delhi.

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