Allowed

Vinod Kumar P.R. v. Range Forest Officer

Kerala HC4 Apr 2017WP(C)/22079/2016

Case brief

AI extract

What is this about?

The court held that the Forest Officer lacked power to revoke a validly granted permission for cutting timber merely because a civil appeal challenging the donor's title was pending. The pending appeal does not eclipse the trial court's judgment declaring the donee's prima facie title.

What did the court decide?

The impugned revocation orders (P9, P12) and appellate order (P16) were quashed; original permission (P7) restored.

Vinod Kumar P.R. Vs Range Forest Officer — Property and Title | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU

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TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939

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WP(C).No. 22079 of 2016 (H)

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PETITIONER(S):

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VINOD KUMAR P.R. S/O.RAMU, AGED 55 YEARS, PARIYARATHODIYIL HOUSE, RAMCO ENTERPRISES, OOTTY ROAD, MEPPADI, WAYANAD DISTRICT, PIN 673 577.

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BY ADVS.SRI.V.T.MADHAVANUNNI

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SRI.V.A.SATHEESH

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RESPONDENT(S):

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RANGE FOREST OFFICER, OFFICE OF THE RANGE FOREST OFFICER, MEPPADI RANGE, MEPPADI, PIN.673 577.

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DIVISIONAL FOREST OFFICER, SOUTH WAYANAD, OFFICE OF DFO, KALPETTA, WAYANAD DISTRICT.

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STATE OF KERALA, REPRESENTED BY SECRETARY TO FOREST DEPARTMENT, THIRUVANANTHAPURAM.

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K. SAROJINI, W/O.LATE RAMU,

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AGED 80 YEARS, ARAYADATH TARAWAD, KUNDU PARAMBA, EDAKKAD POST, KOZHIKODE - 673 005.

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R4 BY ADV. SRI.K.B.SIVARAMAKRISHNAN R4 BY ADV. SRI.K.SANEESH KUMAR R1-R3 BY ADV. SRI.SANDESH RAJA.K., SPL. G.P. (FOREST) R BY SMT. A.C. VIDHYA, GOVERNMENT PLEADER R BY SRI.M.P.MADHAVANKUTTY, SPL. GOVT. PLEADER FOR FOREST

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 22079 of 2016 (H)

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: 2 :

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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P1 TRUE COPY OF THE GIFT DEED DATED 08.08.2006 EXECUTED BY SAROJINI IN FAVOUR OF THE PETITIONER.

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P2 TRUE COPY OF THE LETTER ISSUED BY THE COFFEE BOARD, CHUNDALE TO THE PETITIONER DATED 06.05.2015.

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P3 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER TO THE RESPONDENT NO.1 DATED 03.06.2015.

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P4 TRUE COPY OF THE ORDER OF THE SUB COLLECTOR, MANANTHAVADY DATED 02.12.2015.

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P5 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER TO THE RESPONDENT NO.1 DATED 03.12.2015.

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P6 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER TO THE RESPONDENT NO.1 DATED 04.12.2015.

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P7 TRUE COPY OF THE ORDER ISSUED BY THE RESPONDENT NO.1 DATED 12.01.2016.

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P8 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE RESPONDENT NO.1 DATED 14.01.2016.

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P9 TRUE COPY OF THE REVOCATION ORDER ISSUED BY THE RESPONDENT NO.1 DATED 16.01.2016.

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P10 TRUE COPY OF THE JUDGMENT IN O.S.NO.122/2010 OF THE COURT OF THE SUBORDINATE JUDGE, SULTHAN BATHERY DATED 13.10.2015.

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P11 TRUE COPY OF THE REVIVAL ORDER ISSUED BY THE RESPONDENT NO.1 DATED 27.01.2016.

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P12 TRUE COPY OF THE REVOCATION ORDER ISSUED BY THE RESPONDENT NO.1 DATED 30.01.2016.

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P13 TRUE COPY OF THE REPLY FILED BY THE PETITIONER TO THE RESPONDENT NO.1 DATED 02.02.2016.

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P14 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER TO THE RESPONDENT NO.2 DATED 05.02.2016.

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P15 TRUE COPY OF THE JUDGMENT IN WPC NO.630 OF 2016 OF THE HIGH COURT OF KERALA DATED 06.02.2016.

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P16 TRUE COPY OF THE ORDER OF THE RESPONDENT NO.2 DATED 04.04.2016.

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RESPONDENT(S)' EXHIBITS: NIL

True Copy/

P.A to Judge.

'CR'

DAMA SESHADRI NAIDU, J.

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W.P. (C) No. 22079 of 2016 ()

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Dated this the 4^th day of April, 2017.

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JUDGMENT

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Introduction:

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A piece of property was allegedly gifted away. The donee, a son, wants to enjoy the property as the full owner. He obtains permission from the forest officials to cut timber standing on the land. The donor, the mother, questions the gift as a product of fraud but loses the suit; she nevertheless files an appeal, pending now. In the meanwhile, she complains to the forest officials to withdraw the permission. They do. Are they entitled to do so? The answer: No.

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Facts:

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Vinod Kumar, the petitioner, owns three acres within the Meppady Forest Range. He claims title to the property through his mother, the 4^th respondent. His mother is said to have gifted the property to him, through a registered deed of gift.

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In the course of time, Vinod applied to the Range Forest Officer (“Forest Officer”), the first respondent, for permission to cut and carry the trees on the land. The Forest Officer, in turn, had the property inspected by his staff, and eventually granted Ext.P7

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permission. But before Vinod could act under the permission, his mother, through her another son, complained that she had already questioned the petitioner's title to the property and a civil suit was pending. She, therefore, requested the Forest Officer to revoke Ext.P7 permission he had granted earlier. The first respondent did.

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In the meanwhile, the suit filed by the mother was dismissed as seen from Ext.P10 judgment dated 13.10.2015. Later, the mother filed RFA No. 61 of 2016 before this Court on 28.01.2016. Though she filed an interlocutory application for an injunction, so far she could not get one.

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But the Forest Officer, acting on the mother's request, temporarily revoked the permission by passing the Ext.P9 order. Later, he passed the Ext.P12 ordr cancelling the permission. Aggrieved, Vinod filed a statutory appeal which also ended in dismissal, as seen from Ext.P16. Eventually, he has filed this writ petition questioning the forest officials’ action in cancelling the permission granted to him earlier: to quash Exts.P9, P12 and P16.

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Submissions:

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Petitioner’s:

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In the above factual backdrop, Sri V. T. Madhavanunni, the petitioner’s counsel has submitted that the Sub-Collector,

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W.P.(C.) No. 22079/2016 -3-

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Mananthavady, as seen from Ext.P7, certified that Vinod had been in possession. The Forest Officer also had the property inspected before acceding to Vinod’s request. Only then did he permit Vinod to cut and carry the trees on the property. Sri Madhavanunni has also drawn my attention to Ext.P10 judgment in which, according to him, the civil court categorically observed that the mother had failed to establish that the gift deed is a sham document. Nor has the Court found Vinod’s title to or possession of the property lacking in any respect. In the end, Sri Madhavanunni has strenuously contended that mere pendency of an appeal cannot be a ground for the authorities to refuse to exercise their statutory power or to recall the validly passed orders exercising that power. He, therefore, urges this Court to allow the writ petition.

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4^th Respondent’s:

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Sri K. Saneesh Kumar, the 4^th respondent’s counsel, has contended that the mother herself is the original owner of the property. According to him, Vinod secured the deed of gift under vitiating circumstances and, therefore, it had been robbed of all legal sanctity. He strenuously contends that mere dismissal of a suit in the Court of the first instance cannot prevent the mother from asserting her right to the property, more particularly, when an appeal is pending. In this regard, he employs a conventional common-law assertion: An appeal is nothing

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but a continuation of the suit, the original proceeding.

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The mother has never been, according to Sri Saneesh Kumar, divested of her possession over the property. And she continues to own and possess the property, to this day. Therefore, the authorities' revoking Ext.P7 order and their confirming the revocation in appeal, too, are unassailable, argues Sri Saneesh Kumar.

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Government’s:

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The learned Special Government Pleader, for his part, has submitted that the Forest Officer did issue Ext.P7 after considering all the relevant factors and also by following the due process. But given the complaint by a person none other than the applicant’s mother, who, at least, once owned the property, the officials could not be found fault with for acting on the original owner’s request. According to him, the respondent officials acted out of abundant caution not to embroil themselves in any needless litigation. He has further submitted that it is for Vinod to have the civil disputes finally settled to re-assert his right over the property and to renew his request for the permission from the Forest Officer.

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Heard the learned counsel for the petitioner, the learned counsel for the 4^th respondent, and the learned Special Government Pleader, besides perusing the record.

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W.P.(C.) No. 22079/2016

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Issue:

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A mother ostensibly gifts away her property to her son, who is permitted by the authorities to remove the standing timber from the land. Mother disputes the gift, sues the donee, fails to convince the Court, but takes the matter further in appeal. Thus the lis is pending with no interim protection, though. Can the authorities cancel the permission granted earlier on the premise that litigation is pending?

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Discussion:

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Statutorily speaking, Section 6 of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 (“the Act”) deals with the right of owners to cut and remove trees in non-forest land in non-notified areas. It provides that any owner of non-forest land in a non-notified area may cut and transport any tree, other than sandalwood tree, standing on his land, subject to the parameters fixed in the rest of the provision. SubSection 8 provides for an appeal against an order of refusal by the Authorised Officer to grant permission to the owner.

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Further examined, Rule 8 of the Kerala Promotion of Tree Growth in Non-Forest Areas Rules, 2011 (“the Rules”) provides for the procedural nitty-gitty of the appellate remedy. To my query whether any specific provision empowers the Forest Officer to revoke an order passed by him, the learned Special Government Pleader has fairly conceded that

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there is no provision. He has, however, submitted that the authority has inherent power to recall its orders.

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The Power of Recall:

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Now Constitutional Courts have come round to accept that the distinction between the administrative and judicial acts—once fine—has become the finest. The distinction between the administrative and quasijudicial acts has, without any qualifying expressions, disappeared, especially, in the context of the judicial review.

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That said, I may hold that nothing turns on classifying the Forest Officer’s power under Section 6 of the Act either as administrative or quasi-judicial. In granting or refusing permission, the official does decide a facet of a person’s proprietary rights. An appeal, too, is provided under Section 6 (8) of the Act. So I reckon the Ext.P7 to be a quasi-judicial order capable of being appealed against. Granted, the power to recall, then, assumes the colour of review—a substantive adjudicatory power. That power cannot be inherent. It is, therefore, difficult to accept that the Forest Officer has the power to recall his order. Risking repetition, I may well observe that reviewing one's decision and recalling an order are in the realms of distinct adjudicatory powers and need to be conferred statutorily. But, here, taking the later revocation as a refusal, the petitioner approached the appellate

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authority, without success, however.

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The dispute indeed runs in a narrow compass. The authorities, first, granted permission but, later, revoked it because a rival claimant to the property, be it a predecessor-in-title, objected to the authorities' granting permission. True, it would be inadvisable for the authorities to embroil themselves in litigation, especially civil litigation, involving private rights. The very provision, i.e., Section 6, speaks of “an owner of the property” applying. For the purpose of the Act and the Rules made thereunder, an owner is a person who ostensibly enjoys the rights of an owner. For example, a person who claims title to a property under a duly executed deed of conveyance. Here, Vinod did have a registered deed of conveyance: a gift deed. Its authenticity stands accepted by a competent civil court, the pending appeal notwithstanding. His possession—chiefly, a matter of inference—stands certified by a competent revenue official: the Sub- Collector. So, Vinod’s assertion of the title stands the scrutiny of law, prima facie.

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True, through the elaborate Ext.P10 judgment, the trial court in O.S. No. 122 of 2010, has unambiguously declared that the mother has failed to establish her right. On the other hand, the trial court has also held that Vinod did prove his possession, too. As rightly contended by Sri K. Saneesh Kumar, an appeal continues to carry the original

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cause. But unless a valid decree is interdicted, or eclipsed temporarily, in an appeal, it continues to operate, and the legal consequences do not cease to flow. For a declaration by a competent judicial forum cannot be ignored. Therefore, so long as Ext.P10 judgment stands undisturbed, it shall be presumed that Vinod owns and possesses the property, and he may invoke Section 6 of the Act, which he did.

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I hasten to add, however, that my observation on Vinod’s title should not prejudice his mother’s cause in the RFA pending before this Court. The observation is based on Ext.P10 judgment and meant to be used only to determine Vinod’s rights to have the trees cut and removed under Section 6 of the Act. It is, at best, a prima facie title required to be proved by a putative owner in revenue proceedings.

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In these circumstances, I see no justification in the respondent officials' revoking Ext.P7 through Exts.P9 and P12, and later having those orders confirmed in Ext.P16 merely on the premise that the 4^th respondent, having set up a rival title, has filed an appeal and is pending. It is trite to observe that mere pendency of any judicial proceedings will not i pso facto affect the statutory powers of authorities unless there are specific judicial orders to the contrary.

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In these circumstances, I hold that Exts.P9, P10, P12 and P16 cannot be sustained. As a result, Ext.P7 stands restored. Because of this

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Court's restoring Ext.P7, the authorities may take further steps to permit the petitioner to act under Ext.P7. No order on costs.

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sd/- DAMA SESHADRI NAIDU, JUDGE.

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Vinod Kumar P.R. v. Range Forest Officer

Case brief

What is this about?

What did the court decide?

Vinod Kumar P.R. v. Range Forest Officer

Case brief

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