ORDER
V. Ramkumar, J.
1. In this Revision filed under Section 397 read with Section 401 Cr.P.C. the revision 'petitioner' who was the complainant in a private Complaint filed as Crl. M.P. No. 956 of 2007 before the Enquiry Commissioner and Special Judge, Thiruvananthapuram, (hereinafter referred to as 'the Special Judge' for short), alleging the commission of an offence under Section 13(1)(d) and punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120B, I.P.C., challenges the dismissal of the said complaint by the Special Judge.
2. I heard Adv. Sri. K. Harilal, the learned Counsel appearing for the revision petitioner/complainant. At the stage of hearing on admission of this revision petition, I had heard Adv. Sri. P.G. Thampi, the learned Director General of Prosecutions. Now, at the stage of final hearing I also heard Adv. Sri. P.N. Sukumaran, the learned Public Prosecutor.
3. Even though in a revision against an order of rejection of a private complaint without taking cognizance, the accused have no right to be heard, since they were made as respondents 1 to 3 in this Revision and also since this Court had ordered notice in this Revision, I give an opportunity of being heard to respondents 1 to 3 who were represented by Sr. Adv. Sri. T. Krishnan Unni, Sr. Adv. Sri. N. Nandakumara Menon and Adv. Sri. S. Sanal Kumar respectively.
GRAVAMEN OF THE PRIVATE COMPLAINT
The allegations in the complaint filed before the Special Judge by the revision petitioner are as follows:
The complainant is a social worker who is associated with activities for the betterment of the society and eradication of the evil of corruption in the public administration. The first accused (Binoy Viswam) is the Minister for Forest and Wild Life, Kerala State. The 2nd accused (P.K. Gurudasan) is the Minister for Labour and Excise. Both of them are public servants coming under the Prevention of Corruption Act, 1988. The 3rd accused (Savi Mano Mathew) is a private person and is the Managing Director of Southern Field Ventures, Vazhuthacaud. As per notification dated 20-10-2000 and extent of 268.872 hectares of land called Merchiston Estate was declared as ecologically fragile land under Section 3(1) of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000. The above land was an estate originally owned and possessed by the Birla Group. The Ordinance referred to above was subsequently replaced by an Act in the year 2005. By Virtue of the aforesaid Ordinance the said estate vested in the Government. Knowing fully well that the land had vested in the Government as per the aforementioned notification dated 20-10-2000, the 3rd accused purchased the said land from the Birla Group on 30-3-2005. In response to a press publication given by the Indian Space Research Organisation (ISRO) on 13-12-2006 the 3rd accused offered to sell 217 acres out of the said 268.872 hectres of land to the ISRO. On 3-2-2007 Rules under the Kerala Forest Vesting and Management of Ecologically Fragile Lands Act were published. During the intermittent period the 3rd accused has started felling and removing tress from the notified area and collecting timber for his personal benefit. The Palode Range Officer registered cases against him for cutting 68 trees. On 7-3-2007 pursuant to the offer made by the 3rd accused an agreement was entered into between the 3rd accused and the ISRO for sale of the required area of land at the rate of Rs. 4 lakhs per acre. The validity of the said agreement was to be in force till 31 -5-2007. The 3rd accused then managed to obtain a possession certificate from the Thennoor Village Officer on 19-4-2007 and paid tax for the said land on 19-4-2007. Thereafter, in order to enable the 3rd accused to get full marketable title over the said land which had vested in the Government and allegedly held by the 3rd accused, the three accused persons entered into a criminal conspiracy on a day in May 2007. In pursuance of the said conspiracy A1 and A2 jointly convened a meeting of the officers of the Forest Department on 16-5-2007 in the chambers of A1 on the pretext of settling a labour dispute in the estate of A3. On that day they took decisions enabling A3 to fell trees standing on the vested land and also enabling A3 to submit an application before the CEL Custodian for getting the vested land of 707 acres other than 23.7371 hectares released in his favour. True copy of the letter dated 19-6-2007 issued by the Deputy Secretary, Forest Department, enclosing the minutes of the decisions taken in the meeting held on 16-5-2007 is produced along with the complaint. Based on the above decision an ante-dated application was filed by the 3rd accused before the CFL Custodian and as per order dated 12-6-2007 the CFL Custodian passed proceedings denotifying the said land in favour of the 3rd accused by-passing all other pending applications. True copy of the said proceedings is produced along with the complaint. A written request made by the Director of ISRO to the Revenue Minister for allotment of 100 acres of land for setting up Indian Institute of Space Technology had been turned down by the Government. While so, on 20-07-2007 the 3rd accused sold 81.5 acres out of the above land to the ISRO for Rs. 3.26 crores. Thereafter the ISRO made a request to the Chief Minister of Kerala for clearance by de-notifying the above land so as to enable the 3rd accused to perfect the sale of land to the ISRO. All the above acts on the part of perfect the sale of land to the ISRO. All the above acts on the part of A1 to A3 were done pursuant to the aforesaid criminal conspiracy hatched for the purpose of enabling A3 to obtain pecuniary advantage to the extent of Rs. 3.26 crores by sale of 81.85 acres of land to ISRO. A1 to A3 have thereby committed offences under Section 13(1)(d) punishable under Section 13(1)(2) of the Prevention of Corruption Act, 1988 and Section 120B of IPC.
PRIVATE COMPLAINT REJECTED BY THE SPECIAL JUDGE
4. When the learned Special Judge took up the aforesaid complaint for consideration A1 entered appearance through an Advocate and filed an affidavit refuting the allegations. The Special Judge after hearing the learned Counsel for the complainant, the learned Counsel appearing for the first accused and the legal advisor representing the Vigilance Department, as per the impugned order dated 16-10-2007 rejected the complaint after holding that the case was not a fit one to order a preliminary enquiry by the Vigilance Department or to order investigation under Section 156(3) Cr.P.C. It is the said order which is assailed in this Revision filed by the Revision Petitioner/complainant.
ARGUMENTS OF THE REVISION PETITIONER
5. Adv. Sri. K. Harilal the learned Counsel appearing for the revision petitioner made the following submissions before me in support of the revision:
The entire extent of 268.872 hectres which is about 664 acres of land called the Merchiston Estate situated in Thennor Village belonged to the Birla Group. As per Section 3(1) of Ordinance 6/2000 the ownership and possession of the entire extent of 268.872 hectres vested in the State Government as an ecologically fragile land. Thename of the said Ordinance is the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000. The Governor had re-promulgated three other Ordinances to keep alive Ordinance 6/2000 which was eventually replaced by the Kerala Forest (Vesting and Management of Ecologically Fragile Lads) Act, 2003 (Act 21 of 2005) published on 8-6-2005 and which came into force with effect from 2-6-2000, Section 5 of the said Ordinance as well as the Act declares that ecologically fragile lands so vested in the State shall be deemed to be reserved forest constituted under the Kerala Forest Act, 1961 and shall be liable to be managed as such. It was nearly 5 years after the possession and ownership of the aforesaid land had vested in the Government that A3 purchased the said land from the Birla Group on 30-3-2005. As on 30-3-2005 the Birla Group had no ownership or possession over the said land in view of the Ordinance as well as the subsequent Act. On 13-12-2006 ISRO issued a newspaper publication calling for offers from property owners' in Ponmudi area for 217 acres of land for the setting up of a Space Technology Institute. On 15-12-2006 the ISRO also wrote to the Revenue Minister for allotting 100 acres of land for establishing the Space Technology Institute. The District Collector, Thiruvananthapuram had sent a reply to ISRO stating that no land was available with the Government for allotment to the ISRO. On 7-3-2007, A3 entered into an agreement with ISRO for selling 217 acres out of 268.872 hectres of land at the rate of Rs. 4,00,000/ - per acre. The validity of the agreement was till 31-5-2007. When, as on 2-6-2000 the ownership and possession of the entire estate admeasuring 268.872 hectres had vested in the Government free from all encumbrances, neither Birla Group nor A3 had any ownership or possession over the land with effect from 2-6-2000. Hence the sale of the said land by Birla Group to A3 on 30-3,-2005 was null and void. Likewise, the agreement for sale of 217 acres from out of the above total extent by A3 to ISRO on 7-3-2007 was also null and void. It was by corrupt means that A3 obtained a possession certificate from the Village Officer, Thennoor on 19-4-2007 in respect of the 268.872 hectares of land. Realising that the land purchased by him from the Birla Group was taken in by Ordinance 6/2000, A3 entered into a criminal conspiracy with the two Ministers A1 and A2 for the purpose of regularising and perfecting his title over the said land. Under the guise of settling a labour dispute in the estate of A3, a meeting was held in the Chambers of A1, the Forest Minister, The persons who attended the meeting were:
i) A1, the Forest Minister,
ii) A2; the Labour Minister,
iii) A3, Savy Mano Mathew,
iv) A. Alexander
v) K. Abbas, representing C.I.T.U. Union
vi) Panic Gomas (DFO), Thiruvananthapuram)
vii) N. Sukumaran, Addl. Forest Secretary
viii) K.J. Varghese, Forest Conservator, Southern Circle, Kollam and
ix) C.V. Bimal Roy, Advocate, Vanchiyoor representing the 3rd accused.
In that meeting four vital decisions were taken as follows:
i) The estate owner shall not cut trees or carry on any activities in the 23.7371 hectares of land included as ecologically fragile land and which has been in the dominion of the Forest Department from the year 1971 onwards.
ii) It is permissible to the estate owner to cut trees for the purpose of firewood from the land in his possession for the running of the estate. However, the firewood shall not be taken out of the estate under any circumstances.
iii) The estate owner will have to submit application as per rules to the EFL custodian for de-notifying the ecologically fragile lands other than the 23.7371 hectares.
iv) After obtaining the previous permission of the EFL Custodian tress can be cut from the land in possession of the estate owner for the purpose of attending to the maintenance and repair works of the labourers' quarters in the estate.
The effect of decision No. (i) is that A3 the Estate owner was allowed to cut trees from the entire ecologically fragile land other than 23.7371 hectares. In other words, by allowing A3 to cut trees from the ecologically fragile lands which had been declared as reserved forest, A3 was indirectly allowed to commit an offence under Section 27 of the Kerala Forest Act and A1 and A2 were abettors to the said offence by virtue of Section 84 of the said Act. The effect of the second decision taken was also for enabling A3 the estate owner to cut trees for firewood which will also amount to the aforementioned offences under the Kerala Forest Act. By taking decision No. (iii) as above A3 who had no ownership or possession over the entire land was recognised and the owner by A1 and A2 and A3 was-permitted to apply for denotification. Under Rule 17 of the EFL Rules an owner having aright of possession alone can apply for de-notification and his application in that behalf should be accompanied by the necessary documents of title. A1 and A2 thus ratified the illegal purchase of land by A3 on 30-3-2005 from the Birla Group. The 4th decision taken was also in violation of the provisions of the Kerala Forest Act and giving undue pecuniary advantage to A3. It is pertinent to note that if it was a genuine labour problem as was attempted to be projected, then the meeting would have been piloted by the Labour Department. But nobody from the Labour Department participated in the meeting. So, the excuse that it was a labour problem was merely a cloak. Even though the Conservator of Forests had informed during the meeting that A3 had illegally cut 68 trees from the land justifying the registration of criminal cases against him, me intervention of the Ministers (A1 and A2) was sought by A3 only to see that the cases registered against him were withdrawn. Thus, A3 was being allowed pecuniary advantage by A1 and A2 by abusing their position as Ministers within the meaning of Section 13(1)(d) of the P.C. Act. When one of the decisions taken was that A3 should apply to the Custodian for de-notification, Annexure F proceedings of the Custodian would show that A3 had already applied for de-notification op 30-3-2007 that is, much before the meeting for de-notification on 30-3-2007 that is, much before the meeting dated 16-5-2007. This must have been an antedated application subsequently submitted by A3. This conclusion is reinforced by the fact that Annexure F proceedings of the Custodian shows that the designated committee submitted its report only on 24-5-2007. Rule 18(2) of the E.F.L. Rules specifies a time limit of one month for filing of the report by the designated committee. If A3 had applied for denotification on 30-3-2007 as is contended by him, the designated committees' report should have been filed on or before 30-4-2007. But the very fact that the report was filed only on 24-5-2007 will indicate that the so called application dated 30-3-3007 filed by A3 is an ante-dated application. Annexure F proceedings of the Custodian will show that the designated committee visited only 24.409 hectares of land and that too on one single day. Annexure F proceedings further shows that the committee filed its report before the Custodian with a recommendation by the conservator of Forests who was none other than Varghese who had earlier submitted during the meeting on 16-5-2007 that the entire land was ecologically fragile land. He was making a recommendation in favour of de-notifying the land without any enabling provision either in the E.F.L. Act or in the Rules for such recommendation. Within 25 days of receipt of the report of the committee the Custodian issued orders on 12-6-2007 de-notifying the entire property excluding 24.409 hectares of land. Subsequently on 20-7-2007 even before the issuance of a revised notification A3 sold to ISRO 81.5 acres of land which was the subject matter of the agreement for sale dated 7-3-2007. The sale was for Rs. 3.26 crores. The very fact that on 8-1-2008 the Government have re-called the order dated 12-6-2007 passed by the Custodian for de-notification of the ecologically fragile land in question will show that the property was validly included in the notification dated 20-10-2000 as an ecologically fragile land and was not eligible for de-notification. The learned Special Judge has approached the complaint as if he was searching for some material to connect A1 and A2. For taking cognizance of an offence under Section 190 CrPC, a complaint constituting the offence alone is sufficient. The Special Judge seems to have been more concerned about the stigma that might be caused to A1 and A2 Who are Ministers. Cognizance is taken of the offence and not the offender and therefore the social status of the accused is irrelevant. The Special Judge has proceeded as though the allegations in the complaint should have the likelihood of being proved. It is well settled that it is not open to the court to sift the materials for considering whether an offence has been made out or not. After having admitted that there was a clandestine land deal by A3 involving the Revenue and Forest officials the Special judge has observed that no ill-will or bad motive could be attributed to A1 and A2 since the decisions taken were without any concealment and in a transparent manner and further that there was no material to indicate the criminal conspiracy alleged. It is impossible to get direct evidence of criminal conspiracy which can only be inferred from the circumstances of the case. Absence of criminal conspiracy cannot be spelt out by merely reading the complaint. Such considerations were not germane at the stage of taking cognizance of the offence which is otherwise made out from the averments in the complaint. An accused person does not come into the picture at all until process is issued. Even though he is not precluded from being present when an enquiry is held by the Magistrate, his presence either physical or through a counsel or an agent can only be with a view to be informed of what is going on. He has no right to take part in the proceedings. (See Chandra Deo Singh v. Prakash Chandra Bose : [1964]1SCR639 and Sashi Jena v. Khadal Swain : 2004CriLJ1394 . At the time of taking cognizance of the offence the court has to consider only the averments made in the complaint or in the charge-sheet filed under Section 173 Cr.P.C., as the case may be. It is not open to the court to sift or appreciate the evidence at that stage and come to the conclusion that no prima facie case is made out for proceeding further in the matter. (See Reshmi Kumar v. Mahesh Kumar Bhada : (1997)2SCC397 ). An enquiry under Section 202 Cr.P.C. is not in the nature of a trial since a trial can commerce only after-process is issued to the accused. The proceedings under Section 202 Cr.P.C. are not strictly proceedings between the complainant and the accused. (Dr. S.S. Khanna v. Chief Secretary, Patna and Anr. : [1983]2SCR724 ). At the stage of consideration of the private complaint the court is not expected to see whether the allegations are likely to be proved by the materials produced before court. (See Sreekumar S. Menon v. State of Kerala : 2004(2)KLT53 ). After deciding the question as to whether a prima facie case has been made out in an enquiry under Section 202 Cr.P.C. the consideration should be from the point of view of the complainant without advertising to any defence which the accused may have. At that stage the accused has no locus standi and is not entitled to be heard on the question whether process should be issued against him or not. (See Smt. Nagawwa v. Veeranna Sivalingappa : 1976CriLJ1533 ). If a public servant causes wrongful loss to the Government for benefiting a 3rd party it amounts to abuse of power within the meaning of Section 5(1)(d) of the Prevention of Corruption Act, 1947 corresponding to Section 13(1)(d) of the Prevention of Corruption Act, 1988. The learned Special Judge committed a patent illegality by allowing the first accused to be represented by a lawyer and permitting an affidavit to be filed by the first accused. Until process it issued to the accused, the person shown as the counter petitioner in the complaint does not have the status of an accused and has no right of audience before the trial court or before a superior Court at the pre-process stage. (Somu alias Somasundaram and Ors. v. The State and Anr. 1985 Crl.L.J. 1309 (Madras) and Sivasankar v. Santhakumari 1993 (1) KLT (Madras).
JUDICIAL RESOLUTION
6. I am afraid that I find myself unable to agree with the above submissions made on behalf of the complainant.
The Gubernatorial law making and the eventual Legislative fiat
7. Certain aspects of the matter can be taken judicial notice of by this Court. The Kerala Forest (Vesting and Management of Ecologically Fragile Land Act, 2003 (hereinafter referred to as 'the EFL Act' for short) was preceded by 4 Ordinances. The first of the Ordinances namely, Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2000 (Ordinance 6 of 2000) was promulgated by the Governor on 1-6-2000 and it was published in the Kerala Gazette (Extraordinary) on 2-6-2000. As per Section 3(1) of the said Ordinance the ownership and possession of ecologically fragile lands as defined in Clause (i) of Section 2(b) of the Act were to automatically vest in the Government with effect from 2-6-2000 without any notification in that behalf. As per Section 4(4) of the said Ordinance the ownership and possession of all ecologically fragile lands as defined under Clause (ii) of Section 2(b) of the said Act would vest in the Government with effect from the date of declaration of such ecologically fragile lands by a notification issued in the gazette by the government as provided under Section 4(1) of the said Ordinance on the recommendation of an Advisory Committee constituted under Section 15 thereof. Thus, while the vesting of Ecologically Fragile lands under Section 3(i) is automatic with the passing of the Ordinance itself, the vesting of ecologically fragile lands under Section 4(4) of the said Ordinance is only after declaration of lands by the Government by means of a notification on the recommendation of an advisory committee. As mentioned earlier, eventhough no notification is contemplated for the vesting of ecologically fragile lands under Section 3(1) of the Ordinance, a notification dated 20-10-2000 and published in the Kerala Gazetted dated 2-1-2001 was in fact issued by the EFL Custodian without any statutory mandate in that behalf, declaring the particulars of the lands which had vested under Section 3(1) of the Ordinance. There is no dispute that the aforementioned 268.872 hectares of land constituting the Merchistpn Estate were also included in the said notification issued by the Custodian. Since Bill to replace Ordinance 6 of 2000 had to be kept alive by re-promulgating Ordinance Nos. 8 of 2000, 3 of 2001 and 16 of 2001. Taking note of the issuance of the notification dated 20-10-2000 by the Custodian without any statutory backing, a sub section was incorporated as Sub-section 3 to Section 3 in Ordinance No. 3 of 2001 obliging the Custodian to notify the lands vested in the Government under Section 3(i). Subsequently, Ordinance 3 of 2001 was re-promulgated as Ordinance 16 of 2001. But the Bill to replace Ordinance 16 of 2001 by an Act of the State Legislature could not be introduced and passed by the Assembly during its long Session which commenced on 5-6-2001 and ended on 23-7-2001. Hence, by virtue of Clause (a) of Article 213(2) of the. Constitution of India, Ordinance No. 16/2001 ceased to operate (lapsed) with effect from 17-7-2001 i.e. on the expiry of six weeks of the re-assembly of the Legislature. However, all ecologically fragile lands which had vested in the Government as on 2-6-2000 under Ordinance 6 of 2000 which was kept alive by the subsequent Ordinances/continued to remain vested in the State notwithstanding the lapse of Ordinance 16 of 2001 and those lands could be divested only be means of another legislative measure. (See Venkata Reddy v. State of Andrapradesh : [1985]3SCR509 ). During the subsequent session of the Assembly a separate Bill by name the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Bill, 2001 was introduced in the assembly on 4-12-2001. The Bill was, however, referred to the appropriate Select Committee of the Assembly. The Select Committee after holding 19 separate sittings and taking evidence and examining complaints from aggrieved persons finally submitted its report together with the revised Bill (Bill No. 28 of Eleventh Kerala Legislative Assembly) before the Assembly which passed the same on 7-8-2003. The revised Bill contained a new definition for 'forest' and also a provision as Section 19 for validation and by way of transitory provisions where under the custodian was, inter alia given the power either suo motu or otherwise to revise any notification issued under Section 3(3). However, when the Bill duly passed by the Assembly was forwarded to the Governor for his assent under Article 200 of the Constitution, the Governor reserved the Bill for the consideration of the President of India. Subsequently, if was only after the Presidential clearance that the Governor assented to the Bill under Article 200 of the Constitution. That is why the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 which was passed in its Bill form by the Assembly on 7-8-2003 which was passed in its Bill form by the Assembly on 7-8-2003 could be published only on 8-6-2005 in the Kerala Gazette. That is the reason why the EFL Act of 2003 became Act 21 of 2005.
8. Now coming to the definition of the expression 'ecologically fragile lands' the same definition was' adopted in all the 4 Ordinances as well as in the Act which was enacted later. The said definition in Section 2(b) reads as follows;-
(b) 'ecologically fragile lands' means,-
(i) any portion of forest land held by any person and lying contiguous to or enriched by a reserved forest or a vested forest and any other forest land owned by the Government and predominantly supporting natural vegetarian; and
(ii) any land declared to be an ecologically fragile land by the Government by notification in the official Gazette under Section 4;
So, ecologically fragile lands can only be portions of forest land held by any person. In all the 4 Ordinances, the expression 'forest' was defined under Section 2(c) as follows:
(c) 'forest' means any land covered with trees and undergrowth and includes all statutorily recognised forests, whether designated as reserved, protected or otherwise and any land recorded as forests in the Government records irrespective of the ownership;
But in the revised Bill Submitted along with the report of the Select Committee, as well as in the EFL Act the definition of the expression 'forest' in Section 2(c) was changed as follows:
(c) 'forest' means any land principally covered with naturally grown trees and undergrowth and includes any forests statutorily recognized and declared as reserved forest, protected forest or otherwise, but does not include any land which is used principally for the cultivation of crops of land duration such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut or cashew or any other sites of residential buildings and surroundings essential for the convenient use of such buildings;
Sub-section 1 of Section 3 in all the 4 Ordinances as well as in the EFL Act is identically worded. It reads as follows;
3. Ecologically fragile lands to vest in Government - (1) Notwithstanding anything contained in any other law for the time being in force, or in any judgment, decree, or order of any court or in any custom, contract or other document, with effect from the date of commencement of this Ordinance, the ownership and possession of all ecologically fragile lands held by any person or any other form of right over them, shall stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date.
In all the 4 Ordinances, Sub-section (2) of Section 3 made the vesting provision under Section 3(1) inapplicable to coffee or cardamom plantations thereby indicating that the ownership and possession of all other plantations including tea estate would vest in the Government. Sub-section (2) of Section 3 in all the 4 Ordinances reads as follows:
3. ...(2) Nothing contained in Sub-section (1) shall apply in respect of any land cultivated with coffee or cardamom held by an owner under valid registration for the plantation raised after obtaining due permission from legally competent authorities
But, by virtue of the new definition of 'forest' in the revised Bill and in the CFL Act, planations such as tea, coffee, rubber, pepper, cardamom, coconut, arecanut and cashew plantations were excluded from ecologically fragile lands and hence there could be no vesting of such plantations. Sub-section (2) of Section 3 which was occurring in all the 4 Ordinances was deleted in the EFL Act and Section 3(3) of Ordinances 3 and 16 of 2001 was re-enacted as Section 3(2) in the E.F.L. Act. Since by the time the EFL Act was passed, Ordinance 16/2001 had lapsed with effect from 17-7-2001, a new provision as Section 19 Was incorporated in the revised Bill of 2001 as well as in the EFL Act. Section 19 reads as follows:
19. Validation and transitory Provision-(1) Notwithstanding the expiry of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Ordinance, 2001 (16 of 2001)(hereinafter referred to as the said Ordinance)-
a) all ecologically fragile lands vested in the government under the said Ordinance shall, in so far as it is riot inconsistent with the provisions of this Act, be deemed to have been vested under this Act;
b) anything done or deemed to have been done or any action taken or demand to have been taken under the said Ordinance shall, in so far it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under this Act;-
2) The expiry of the said Ordinance shall not-
a) affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder; or
b) affect any legal proceedings or remedy in respect of any such right, privilege, obligation or liability and any such legal proceedings or remedy may be instituted, continued or enforced under the provisions of this Act in so far as it is not inconsistent with the provisions of this Act.
3) Notwithstanding anything contained in the said Ordinance or in any judgment decree or order of any court-
a) no land other than the ecologically fragile land as defined in this Act, whether notified under Sub-section (3) of Section 3 of the said Ordinance or not, shall be deemed to have vested or ever to have been vested in Government, and
b) every notification issued in respect of any land under Sub-section (3) of Section 3 of the said Ordinance shall be scrutinised by the custodian suo motu or on an application made by the owner or any person having the right of possession or enjoyment of such land and if necessary, such notification shall be revised and issued in accordance with the provisions of this Act.
Thus, plantations such as tea, rubber pepper, coconut, arecanut and cashew plantations which were not exempted from the sweep of vesting under Sub-section 1 of Section 3 in all the 4 Ordinances, went out of the definition of 'ecologically fragile lands' under the E.F.L. Act which was given retrospective operation with effect from 2-6-2000. By virtue of the statutory fiction under Section 19(3)(a) of the E.F.L. Act, the aforementioned plantations (other than coffee and cardamom) will be deemed to have never vested in the Government. The 3rd respondent, therefore, has a contention that the ownership and possession of Merchiston Estate which is a tea plantation had never vested in the Government and it was to get the said property deleted from the notification dated 20-10-2000 issued by the-custodian that he moved the custodian. Eventhough the said contention of the 3rd respondent appears to be well founded, the same does not deserve a further probe in these proceedings. The Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Rules, 2007 (hereinafter referred to as 'the EFL Rules' for short) was published on 3-2-2007. Persons who were aggrieved by the wrong inclusion of their lands as ecologically fragile lands in the year 2000, had to wait till 2007 for making the necessary application to the Custodian.
NOW, ON THE MERITS
9. I now proceed to consider the contentions of the complainant. The whole case of the complainant appears to be founded on Annexure E decision taken in the meeting held on 16-5-2007 in the Chambers of Al, the Forest Minister. According to the complainant, A3 who had purchased Merchistbn Estate admeasuring 268.872 hectares from the Birla Group on 30-3-2005 did not obtain any valid title or possession thereunder because with effect from 2-6-2000 the ownership and possession of the said land had vested in the Government as an ecologically fragile land under Ordinance 6 of 2000. The complainant would contend that as on 30-3-2005 Birla Group also had no ownership or possession over the land which had vested in the Government and, therefore, on 30-3-2005 Birla Group could not have sold the estate to A3. It is the further contention of the complainant that it was to regularise his title and possession that A3 caused a meeting to be called in the Chambers of A1 Minister under the guise of settling a labour dispute. In fact, Annexure E minutes of the meeting dated 16-5-2007 as well as Annexure F proceedings dated 12-6-2007 of the Custodian which were produced along with the complaint would show that notwithstanding the statutory vesting under Ordinance 6 of 2000 Merchiston Estate which is a tea estate was in the physical possession of Jayasree Tea Company belonging to the Birla Group and which was sold to A3 on 30-3-2005. Even though the vesting of ecologically fragile lands under Section 3(1) of Ordinance 6 of 2000 was automatic without envisaging any notification showing the description, boundaries and other details of identify, noticing the practical difficulties of finding out as to which all properties had statutorily vested under Section 3(1), the E.F.L. Custodian issued a notification on 20-10-2000 published in the Kerala Gazette dated 2-1-2001 In Annexure E minutes of the meeting dated 16-5-2007 held in the Chambers of A1 Minister Sri. Varghese who was the then Conservator of Forest Southern Circle, Kollam had explained to the participants of the meeting the history of the case. His narration of the history as recorded in Annexure E meeting is as follows:
Out of the 283 hectares of Merchiston Estate 23.7371 hectares of land were already in the ownership of the Government from the year 1971 onwards under the Kerala Private Forest (Vesting and Assignment) Act, 1971. Against the vesting of the said 23.7371 hectares of land the former estate owner namely Birla Group had approached the forest Tribunal under the aforesaid 1971 Act. In that case, the Forest Tribunal held against the estate owner and in favour of the Government. Aggrieved by the decision of the forest Tribunal the estate owner filed M.F.A. before this Court. This Court allowed the estate owner's appeal and directed restoration of the 23.7371 hectares to the estate owner. However, the property was included in the EFL Ordinance of June 2000 and the Government held the property as such and this fact was communicated to the estate owner as well as the court. The said 23.7371 hectares of land is lying in 7 blocks and has been in the possession of the Forest Department from the year 1971 onwards. The estate owner had cut 68 tress from the said land in the beginning of June 2007. The case was registered against the estate owner for cutting trees from Government property. Eventhough the entire land including 18 hectares has been notified as ecologically fragile lands, the Forest Department has not taken any steps against the running of the estate. The estate owner has given a complaint as per Rules to the EFL custodian against the inclusion of the above lands as ecologically fragile lands. The allegation by the estate owner that the Forest Department has encroached into the estate and has put up cairns is not correct.
Therefore, what the 2nd accused Labour Minister remarked is recorded in Annexure E minutes. The Minister's remarks was that the cutting of trees from the disputed land was not proper and the proper course for the management was to resort to the legal remedies available to him for the resolution of the disputes. It was after a detailed discussion that the four decisions referred to in paragraph 5 above, were taken. As per those decisions, far from conceding any right or privilege in favour of the 3rd respondent, he was asked to have recourse to his remedies as per law with regard to the 23.7371 hectares of land which was not in his physical possession and with regard to the remaining land which was in his possession. In fact, the 1st decision taken in the meeting was with regard to the 23.7371 hectares of land which was and which continues to be in the possession of the Government. It is pertinent to remember that notwithstanding the statutory vesting of the ownership and possession of the tea estate as an ecologically fragile land under Ordinance 6 of 2000 it was clearly shown that except for the 23,731 hectares comprised in 268.872 hectares, the remaining extent was in the physical possession of the 3rd respondent. The Conservator of Forests, Southern Circle, Kollam had, during the meeting held on 16-5-2007 had also allayed the apprehensions of the 3rd respondent by assuring all concerned that the Forest Department was not obstructing the smooth running of the tea Estate. With regard to the 23.7371 hectares of land, the same had vested in the State not under Ordinance 6 of 2000 but under Section 3(1) of the Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act 26 of 1971). Eventhough the 3rd respondent's assignor namely Jayasree Tea Company belonging to the Birla Group had approached the Forest Tribunal under Section 8 of Act 26 of 1971, the Tribunal held against the estate owner and in favour of the Government. Aggrieved by the decision of the Forest Tribunal the estate owner filed M.F.A. 652 of 1989 before this Court and as per judgment dated 12-9-1997 this Court accepted the contention of the estate owner and held that the vesting provision under Section 3(1) of Act 26/1971 was inapplicable to the 23.7371 hectares of land as the said land formed an integral part of the tea estate containing trees such as casuarina trees planted for providing shade for the tea plantation and for being used as firewood in the process of manufacture of tea. This Court, therefore, directed the State Government to restore possession of the said land as provided under Section 8(3)(b) of Act 26 of 1971. But before possession of the said land was restored to the owner, Ordinance 6 of 2000 came into force on 2-6-2000 including the said land also as an ecologically fragile land. Annexure F proceedings of the Custodian produced along with the complaint shows that the Committee (under Rule 18 of the EFL Rules) which conducted the local inspection had reported that 24.409 hectares of land including the 23.7371 hectares laying in 7 bits most of which are lying adjacent to or contiguous to reserved forest and containing mostly species of trees which are usually found in natural forests. That was the reason why the Custodian, in the proceeding dated 12-6-2007 held that 24.409 hectares including the said 23.7371 hectares of land lying in 7 bits clearly satisfies the definition of 'ecologically fragile Jarid' and does not qualify for de-notification under the E.F.L. Act. Even from the materials produced along with the complaint it is clearly revealed that the aforesaid 23.7371 hectares of land was always in the possession of the Government whereas the remaining portion of the tea estate continues to be in the possession of the 3rd respondent as transferred to him by Jayasree Tea Company. It was mainly with regard to the 23.7371 hectares of land that the meeting in the Chamber of the Forest Minister (Al) was convened on 16-5-2007. The main decision taken was also with regard to the said land into which the 3rd respondent was prohibited from entering and cutting trees. The other decisions taken were with regard to the rest of the lands in the actual possession of the 3rd respondent. All the decisions taken on 16-5-2007, as evidenced by Annexure E minutes were to the effect that the estate owner should strictly adhere to the rule of law. By these decisions the 3rd respondent was prohibited from doing any illegal act. Cutting of firewood and wind fallen trees from reserved forests is allowable under the scheme of the Kerala Forest Act. Under Section 27 of the Kerala Forest Act, 1961 it is provided that the prohibition as well as the penal provisions in the said section will not apply to any act done in accordance with any rule made by the Government or with the permission in writing of the Chief Conservator of Forests or such other Forest Officer mentioned in Clause (a) of Sub-section 4 of Section 27 Under Section 2 of the Kerala Forest Act also the Government have the power to exempt any place from the operation of the provisions of the Act either wholly or in part. A permission given to the estate owner for cutting trees for firewood for the consumption of the tea estate cannot be treated as an offence. In fact, the Division Bench of this Court in M.F.A. 652 of 1989 had taken note of the fact that firewood is required by this estate for manufacture of tea. It is true that there was a statutory vesting of the ownership and possession of all ecologically fragile lands in the Government on 2-6-2000. But then the Legislature was conscious of the fact that the owners themselves might be in actual possession of such lands both on the date of vesting as well as thereafter. That is presumably why Section 7 of the E.F.L. Act provides for eviction of any person in occupation of ecologically fragile lands vested in the Government and that too after giving such person 30 day' s notice.
10. A Minister who is a political executive is the elected representative of the people. His primary aim in public life should be to serve the people. His accountability is also to the people. When it is said that a Minister is politically responsible to the Legislature for every action taken or omitted to be taken in his ministry, it is nothing but an affirmation of his accountability to the people. The Constitution and the people are his mentors. When the people approach him with grievances, he cannot avoid them. He has to redress their grievances to the extent possible and thereby wipe their tears. But while redressing their grievances by pressing into service the Governmental resources at his command, a Minister should bear in mind that during his quinquennial tenure as Minister, he is only a trustee of the corporeal and incorporeal assets of the State. As long as the favours and largesse which he extends to the citizens are not from his own ancestry but from the State's coffers, he cannot pick and choose the recipients of his generosity. He cannot act arbitrarily or with a parochial, communal, partisan or political eye. He has to realise that there are lakhs and millions of people who are either disinclined or unable or disabled to meet him and curry favours from hi. Hence, while taking a decision favourable to an applicant before him, he should ensure that his decisions do not affect or deprive the legitimate rights of a good majority of people who are not before him. No Minister can have a secret agenda while attempting to find solutions for an issue before him. A Minister who transacts official business in a transparent manner without any attempt at concealment, is a functionary committed to the Constitution of India and the rule of law which constitute the essence of any democracy. From the decisions taken as per Annexure E minutes, it cannot be inferred even remotely that the two Ministers had any ulterior motive or extraneous consideration behind the holding of the meeting or in taking those decisions.
11. Equally misconceived is the contention of the revision petitioner/complainant that the application submitted by the 3rd respondent seeking de-notification was antedated. Eventhough one of the decisions taken in the meeting as revealed by Annexure E minutes is that the 3rd respondent may apply to the EFL custodian for de-notifying the land, the very same minutes has recorded that the Conservator of Forests had mentioned that the estate owner had already submitted a complaint as per Rules to the E.F.L. Custodian against the inclusion of his land as ecologically fragile land. Annexure F proceedings dated 12-6-2004 of the EFL Custodian also clearly refers to the petition dated 30-3-2007 by the 3rd respondent. The argument based on Rule 18 of the E.F.L. Rules is also without any substance. The provision in the Rule is not that the committee should submit a report of the local inspection within one month from the date of the pplication for exemption under Rule 17 of the E.F.L. Rules. After the receipt of the application under Rule 17 the custodian is to order a local inspection by the committee and the report of the local inspection is to be submitted within one month from the date of receipt of the order of the custodian. Hence, I am hot persuaded to agree with the revision petitioner/complainant that the application filed by the 3rd respondent was ante-dated.
12. Most of the decisions cited by the revision petitioner pertain to the consideration which should weigh with the Magistrate while taking cognizance of an offence by proceeding under Chapter XV of Cr. PC. In the case on hand, respondents 1 and 2 are sitting Ministers who are public servants within the meaning of Section 2(c) read with Section 19 of Prevention of Corruption Act, 1988. Hence, no court can take cognisance of the offence as against A1 and A2 without a prosecution sanction. Admittedly, the petitioner has not obtained any sanction to prosecute A1 and A2. If so, the Special Judge cannot take cognizance of the offences as against A1 and A2. In the case of A3 also, when there is no vesting of a tea estate under the E.F.L. Act, A3 had to necessarily work out his remedies against the inclusion of Merchiston Estate in the notification issued by the Custodian. With regard to the cutting of trees from 23.7371 hectares of land not in his possession, he is already facing action initiated by the Forest Department. If so, there was no circumstances made out for taking cognizance of the alleged offences as against A3 as well. Hence the only course open to the Special Judge was to either order a preliminary enquiry or direct an investigation by the Director of Vigilance by forwarding the complaint under Section 156(3) Cr.P.C. For resorting to both the above courses the Special Judge should be satisfied from the averments in the complaint that a cognizable and the documents produced by the complainant himself do not even prima facie reveal any criminal conspiracy or a bad motive on the part of A1 and A2 to extend a helping hand to A3 for committing any illegal act or for doing a legal act through illegal means, it will not be open to me Special Judge to forward the complaint under Section 156(3) Cr.P.C. and thereby visit the public servants with incalculable harm to their reputation as was observed in Madathil Marakkar Haji v. Vakkom B. Purushothaman 2007 (4) KLT 659.
13. It is true that it was not permissible for the Special Judge to hear the counsel for A1 or to receive on his file any affidavit by A1 at the pre-cognizance stage in a private complaint. But then, the impugned order shows that the learned Special Judge had perused and has even extracted portions from the Judgment of this Court in Madathil Marakkar Haji's Case wherein this Court had permitted the complainant as well as the accused in that case to address arguments before the Special Judge with regard as to the procedure to be followed by the Special Judge in a private complaint in that case which was also at the pre-cognizance stage. That may be the reason why the Special Judge allowed A1 in this case to be represented by a lawyer and took on file an affidavit by A1. But the Special Judge did not advert to the affidavit filed by A1 while disposing of the matter. I, therefore, do not find any impropriety on the part of the Special Judge in giving A1 an opportunity of being heard. At best, it is only an irregularity curable under Section 465 Cr.P.C. and I am not inclined to entertain the contentions raised in this connection, by the revision petitioner.
14. Incidentally, it is relevant to note that in the statement dated 5-12-2007 filed before this Court by the Inspector of Police, Vigilance and Anti Corruption Bureau, it is stated that on 24-9-2007 the Government has ordered a detailed vigilance enquiry into the alleged irregularities in the purchase of Merchiston Estate which was notified under the EFL Ordinance and the alleged involvement of various departments in the transactions and into the turn of events culminating in the order for de notification etc. When such a comprehensive enquiry is afoot, a complaint of this nature mainly targeting two Ministers can be viewed only with some suspicion.
15. The result of the forgoing discussion is that the order of rejection of the complaint by the Special Judge was perfectly legal and proper and no interference is called for by this Court.
16. This Revision is accordingly dismissed.