Remanded

Vasu v. State of Kerala & Anr.

Kerala HC22 Sept 2014CRP/555/2009

Case brief

AI extract

What is this about?

The Court set aside the judgment and order dismissing the C.M.A. against the confiscation of a tractor trailer under Section 61A of the Kerala Forest Act. It held that the appellant was denied natural justice as he was not given a chance to prove the vehicle was used without his knowledge, as mandated by Section 61B. The matter was remitted for fresh consideration.

What did the court decide?

The C.R.P. allowed; impugned judgment and order set aside; matter remitted to authorized officer for fresh consideration after granting opportunity to prove the owner's case.

Vasu Vs State of Kerala & Anr. — Civil Procedure and Limitation | Kerala HC (2014)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE B.KEMAL PASHA

¶4

MONDAY, THE 22ND DAY OF SEPTEMBER 2014/31ST BHADRA, 1936

¶5

CRP.No. 555 of 2009 ( )

¶6

CMA 93/2007 OF DISTRICT COURT, PALAKKAD

¶7

REVISION PETITIONER/APPELLANT/CLAIM PETITIONER::

¶8

VASU AGED 57 YEARS, S/O.PONNAN 'SREEPADAM', KOLLAYANKADU CHATHAMANGALAM POST, NENMARA, PALAKKAD DISTRICT.

¶9

BY ADV. SRI.RAJESH SIVARAMANKUTTY

¶10

RESPONDENTS/RESPONDENTS:

¶11

STATE OF KERALA, REP. BY DISTRICT COLLECTOR, PALAKKAD.

¶12

DIVISIONAL FOREST OFFICER, NENMARA, PALAKKAD.

¶13

BY ADV. SRI.M.P.MADHAVANKUTTY, SPECIAL G P (FOREST)

¶14

THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22-09-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶15

B. KEMAL PASHA, J.

¶16

¶17

C.R.P. No.555 of 2009

¶18

Dated this the 22^nd day of September, 2014

¶19

O R D E R

¶20

~ ~ ~ ~ ~ ~

¶21

The appellant in C.M.A. No.93/2007 of the District

¶22

Court, Palakkad has come up challenging the judgment dated 25.08.2009 passed by the learned District Judge in the matter.

¶23

The petitioner is the registered owner of a tractor

¶24

trailer bearing registration No.KL-09H-8559. O.R. No.12/2004 was registered by the Nelliyampathi Forest Range for various forest offences alleging that two teak trees were cut and removed from the 1984 Eucalyptus Plantation of Pothundi Section coming within the Nelliyampathi Forest Range. After the registration of the crime on 28.07.2004, the investigation revealed that the teak trees cut and removed from the forest were purchased by the petitioner and the same were converted into furniture

¶25

CRP.555/2009

¶26

: 2 :

¶27

items, which were later recovered and seized. It is alleged that the aforesaid tractor trailer of the petitioner was used for transporting the said teak timber pieces to the sawmill and back. Consequently, the vehicle was seized on 29.07.2004. Confiscation proceedings were initiated under Section 61A of the Kerala Forest Act, 1961, which culminated in order dated 14.06.2007 by the Divisional Forest Officer thereby ordering confiscation. The same was unsuccessfully challenged through the C.M.A.

¶28

Heard the learned counsel for the petitioner Sri.Rajesh Sivaramankutty and the learned Special Government Pleader Sri.M.P.Madhavankutty for the respondents.

¶29

The learned counsel for the petitioner has argued that there was total failure of natural justice in passing the order impugned in the C.M.A. and that the learned District Judge had erroneously taken the view that the petitioner had an opportunity to examine himself and his driver as

¶30

CRP.555/2009

¶31

: 3 :

¶32

witnesses on his part to show that the said vehicle was being used in a quarry at the time of the alleged transportation of timber in this case. It is true that an opportunity for cross examination of the concerned Range Officer was extended and the same was utilised by the petitioner.

¶33

Per contra , the learned Special Government

¶34

Pleader has argued that there is no provision in the Kerala Forest Act that enables the extensive trial in the matter of passing an order for confiscation under Section 61A. The attention of this Court has been invited to Section 61B of the Kerala Forest Act to show that what was contemplated therein was only an opportunity of being heard after filing a written objection.

¶35

It is the admitted case that an error has been

¶36

crept in the judgment passed by the learned District Judge in paragraph 8 of the judgment in the C.M.A. In paragraph 8, the learned District Judge has observed that the appellant

¶37

CRP.555/2009

¶38

: 4 :

¶39

had examined two witnesses on his side and they gave evidence that the tractor trailer was seized from a quarry and that at that time, it did not contain any teak timber. It is the admitted case of both sides that no such witnesses were examined by the petitioner, even though such an opportunity was sought for by the petitioner. The learned counsel for the petitioner has pointed out that the petitioner had sought for an opportunity before the Divisional Forest Officer, who passed the confiscation order which was impugned in the C.M.A. Especially when his son, who had allegedly made use of the tractor for the alleged transportation of teak timber, was not holding a driving licence, an opportunity ought to have been granted to the petitioner to show that the vehicle was allegedly used without the knowledge and consent of the petitioner. Further, the petitioner should have been given an opportunity to prove that the driver of the petitioner had also taken necessary precaution to see that the vehicle was not being used for any illicit purpose.

¶40

CRP.555/2009

¶41

: 5 :

¶42

It seems that the learned District Judge has proceeded with an erroneous assumption that the petitioner had such an opportunity to examine himself and his driver as witnesses on his part. Especially when the main item of evidence that was relied on by the Divisional Forest Officer to pass the order impugned in the C.M.A. was the statement of the son of the appellant who is also an accused in the said O.R., such an opportunity ought to have been granted to the petitioner.

¶43

The learned Special Government Pleader has pointed out that as per Section 61B of the Kerala Forest Act, a notice has to be issued to the person regarding the confiscation, an opportunity has to be given to him to file a representation in writing challenging the proceedings, and thereafter he should be given a reasonable opportunity of being heard in the matter. My attention has been invited to the decision in D.F.O., Kothamangalam Vs. Sunny Joseph [2002 (3) KLT 641], wherein it was considered whether there

¶44

CRP.555/2009

¶45

: 6 :

¶46

was failure of natural justice in denying an opportunity to cross examine an authorised officer on a particular point. Based on the decision in Joseph Vs. Authorised Officer [1993 (1) KLT 212] rendered by a learned Single Judge of this Court, it was held in D.F.O., Kothamangalam ( supra ) that there could not be a failure of justice even if such an opportunity was not granted. It seems that Joseph ( supra ) was rendered by relying on Kanungo & Co. Vs. Collector, Customs, Calcutta [AIR 1972 SC 2136]. In that case, the question that was considered was whether the accused had a right to examine or cross examine the informant in a customs case. The customs authorities are not expected to reveal the identity of the informant and that they are not expected to divulge any information regarding the details of the informant or the source from where the information was received. It was in that context, the Apex court held that the suppression of the details of the informant or the source from where the information was received does not render

¶47

CRP.555/2009

¶48

: 7 :

¶49

the proceedings illegal and in such case, there is no negation of the principles of natural justice. It was based on that decision, it seems that the decision in D.F.O., Kothamangalam ( supra ) was rendered.

¶50

The Special Government Pleader has invited the attention of this Court to the decision in State of Kerala Vs.

¶51

Mathew [1995 (2) KLT 772], wherein it was held in paragraphs 4 and 5 as follows:-

¶52

“4. Sec. 61-B contains two sub-sections. The first sub-section says that no order 6f confiscation shall be made without giving notice to the person from whom it was seized informing him of the grounds for confiscation and affording him an opportunity of making representation. Sub-section (2) contains a further restriction against confiscation. It says that no order of confiscation shall be made if the owner of the vehicle proves that it was used in carrying the timber

¶53

CRP.555/2009

¶54

: 8 :

¶55

"without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the vehicle and that each of them had taken all reasonable arid necessary precautions against such use".

¶56

The restriction against confiscation contained in sub-section (2) can operate only on the combination of three postulates. First is that the owner or his agent was totally unaware of the illicit use. Second is that he had taken all reasonable and necessary precautions against such use. Third is, the person in charge of the vehicle had also taken reasonable and necessary precaution against such use. If the owner succeeds in satisfying only the first two postulates, he would not get the benefit of the restriction against confiscation. The third condition is as important as the other two and unless that also is established

¶57

CRP.555/2009

¶58

: 9 :

¶59

no advantage would practically enure to the owner of the, vehicle. Sub-section (2) would remain at bay if the third condition remains unsatisfied.”

¶60

From State of Kerala ( supra ), it is evident that

¶61

the owner should be given an opportunity to prove that he is unaware of the illicit use of his vehicle, and that he had taken all reasonable and necessary precautions against such use, and thirdly, the person in charge of the vehicle had also taken reasonable and necessary precaution against such use. When the petitioner has sought for such an opportunity, that should not have been denied. It seems that the learned District Judge has taken the view that such an opportunity was extended to the petitioner.

¶62

The learned counsel for the petitioner has pointed

¶63

out that Section 61B(2) of the Kerala Forest Act also clearly reveals that if the owner can prove to the satisfaction of the authorised officer that his vehicle was not made use of for

¶64

CRP.555/2009

¶65

: 10 :

¶66

any such illicit purpose or that he had taken all reasonable care and caution against such illegal use, and that the person who was in charge of the vehicle had also taken such reasonable care and caution, an order under Section 61A cannot be passed against the owner. Therefore, Section 61B(2) of the Kerala Forest Act, 1961 itself makes it clear that the petitioner could have availed such an opportunity. Especially when he had sought for such an opportunity, the authorised officer ought to have extended such opportunity. As no such opportunity was given to him, it has resulted in the negation of the solemn principles of natural justice. Matters being so, the impugned judgment and the order impugned in the C.M.A. are liable to be set aside. Of course, the same should not stand in the way of the authorised officer to act once again in accordance with law by complying with the principles of natural justice as contemplated under Section 61B of the Kerala Forest Act, 1961 in passing an order under Section 61A of the Kerala

¶67

CRP.555/2009

¶68

: 11 :

¶69

Forest Act. Therefore, the matter is liable to be remitted to the authorised officer for fresh consideration in accordance with law by giving an opportunity to the petitioner to prove his case as contemplated under Section 61B of the Kerala Forest Act, 1961.

¶70

In the result, this C.R.P. is allowed and the impugned judgment and the order passed by the authorised officer are set aside. The matter is remitted to the authorised officer, who will consider the matter afresh and pass an order in the matter, after giving an opportunity to the petitioner to prove his case by examining witnesses. The parties shall appear before the authorised officer on 04.11.2014.

¶71

Sd/- (B.KEMAL PASHA, JUDGE)

¶72

aks/22/09

¶73

// True Copy //

¶74

PA to Judge

Vasu v. State of Kerala & Anr.

Case brief

What is this about?

What did the court decide?

Vasu v. State of Kerala & Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K.Madhavan Vs the State of Kerala and Others

Kozhinhileri Raman Vs State of Kerala

M/S.Hemambika Chittes Vs v.C.Balachandran

P.Muthu Nair Vs Kodoth Karthiyayini Amma and Others

Ali Vs Vasudevan and Others

Ratheesh Kumar Vs Sadanandan Shaji