Judgment:
ORDER
M. Sasidharan Nambiar, J.
1. Whether the owners of a private property cutting trees from his own property could be prosecuted, is the question to be settled in this petition.
2. O.R. No. 19/2009 of Pariyaram forest range was registered under Annexure-A occurrence report in Form No. 1, under Sections 69, 61A, 63 and 52 of Kerala Forest Act, 1961 against the petitioners on the allegation that seven live teak trees and two dry teak trees standing in the private property of petitioners 4 to 8 were cut and made into pieces and transported in KL-06A 5157 mini lorry. This petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A report contending that when the trees were admittedly standing in the private properties of the petitioners 4 to 8, and were not cut from any forest land, Kerala Forest Act is not attracted and therefore, petitioners cannot be prosecuted for the offences under Sections 52, 61A, 63 and on that sole ground the occurrence report is to be quashed. It is also contended that cutting of teak trees from private property is not an offence under The Kerala Forest (Prohibition of Selling of Trees Standing on Land Temporarily or Permanently Assigned) Rules 1995 or under the Kerala Preservation of Trees Act, 1986 and as there is no prohibition for cutting teak trees from the compound of any residential building and as the trees were cut from the private properties of petitioners 4 to 8 the proceedings is to be quashed.
3. Learned Counsel appearing for the petitioners and learned Public Prosecutor were heard.
4. The learned Counsel relying on a decision of this Court in Augustine Mathew v. State of Kerala 2009 (3) KLT 560 argued that in an identical case this Court has already quashed the proceedings invoking the powers under Section 482 of Criminal Procedure Code finding that cutting of trees from a private property by its owner is not an offence either under The Kerala Forest (Prohibition of Selling of Trees Standing on Land Temporarily or Permanently Assigned) Rules 1995 or Kerala Preservation of Trees Act 1986 and hence the proceedings is to be quashed. Relying on the decision of the learned Single Bench in Bhargavan v. Divisional Forest Officer 1994 (1) KLT 29 the learned Counsel also argued that when cutting of teak trees from the private property is not an offence, transportation of teak tree logs in a vehicle, from a private property is also not an offence and if so the vehicle is not liable for confiscation.
5. Learned Public Prosecutor pointed out that the trees were cut in this case from Pariyaram village, which is a notified area under Kerala Promotion of Tree Growth in Non-Forest Area Act and under the said Act if the specified tree is cut from a notified area without permission, it is an offence punishable under Section 7 of the Act and even if Kerala Forest Act is not applicable, petitioners are liable for the offence under Section 7 of that Act and hence the case cannot be quashed. Learned Public Prosecutor also pointed out that applicability of the Kerala Promotion of Tree Growth in Non-Forest Areas Act was not considered by the learned Single Judge in Augustine Mathew's case, (supra)
6. The learned Single Judge in Augustine's case did not consider the question whether the Kerala Promotion of Tree Growth in Non-Forest Areas Act (hereinafter referred to as the Act) is attracted or not. In that case action was taken by the Forest authorities for cutting and removing teak trees from the residential compound of the petitioners therein. This Court considered the question whether it would amount an offence under The Kerala Forest (Prohibition of Selling of Trees Standing on Land Temporarily or Permanently Assigned) Rules 1995 or Kerala Preservation of Trees Act and found that both the said Acts do not prohibit cutting of teak trees from the private residential property of the owner and hence quashed the proceedings. The applicability of Kerala Promotion of Tree Growth in Non-Forest Act was not considered at all.
7. The property, in this case from where the teak trees were cut, is admittedly situated in Pariyaram village of Thrissur District. Learned Public Prosecutor made available notification G.O.P. No. 40/2006/FNWLD dated 14th November, 2006 issued by the Secretary to Government, Forest Department, in exercise of the powers conferred under Sub-section (3) of Section 6, as amended by the Kerala Promotion of Tree Growth in Non-Forest Area Amending Ordinance 2006 whereunder it is provided that no trees standing in any non forest land, specified in column 4 of the schedule to the notification, shall be cut, uprooted, burn or otherwise destroyed except on the ground that the tree constitutes a danger to the life or property or is wind fallen or as permitted by the proviso to the said sub-section. Serial No. 19 shows in column No. 4 Pariyaram village, of Mukundapuram Taluk (column 3) of Thrissur District (column 2). Therefore, the property from the teak trees in this case were cut belonging to petitioners 4 to 8, is definitely situated within the notified area.
8. The Kerala Promotion of Tree Growth in Non-Forest Areas Act 2005 was enacted to promote cultivation of trees in non-forest areas of the State, in order to increase green cover, preserve bio-diversity and arrest soil erosion and to increase availability of timber and bamboo for industry. Section 3 provides rights of owner of non-forest lands. Under Sub-section (1), every owner of non-forest land shall be free to plant trees in his land, as may be appropriate and generally contribute to the increase of tree cover in his land, in addition to any crop he may have grown over such land. Under Sub-section (2) every department of Government, every public sector undertaking and every Non-Governmental Organisation shall be free to plant trees in the non-forest lands owned, transferred or vested in them.
9. Section 5 provides duties of Forest Department. Under the said section notwithstanding anything contained in any other law for the time in force, the Forest Department shall have the following duties, namely:
a) to develop, maintain or approve private nurseries, to supply seeds and saplings to all persons who are required to plant new trees or to replace felled trees at reasonable price;
b) to execute the Social Forestry Schemes for tree cultivation through Local Self Government Institutions;
c) to give all technical and other assistance in planting trees;
d) to exercise such other powers and perform such other duties, as are laid down in this Act or the rules made thereunder.
Section 6 provides the right of owners to cut and remove trees in non-notified areas in non-forest land. Sub-section (1) reads:
Notwithstanding anything contained in any other law for the time being in force and subject to the other provisions of this Act, every owner of non-forest land in a non-notified area shall have the right to cut and transport any tree, other than sandalwood tree, standing on his land:
Provided that the provision of this sub-section shall not apply to trees, if any, reserved by the Government at the time of assignment of such land or trees standing on any land notified under Section 5 of the Kerala Preservation of Trees Act, 1986 (35 of 1986) or the areas notified by the Custodian under the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (21 of 2005).(2) For the purpose of this Act the Government may, by notification in the Gazette, appoint such officers not below the rank of a Forest Range Officer as they think fit to be Authorised Officers (referred to as 'Authorised Officer' in this Act) and may assign to them such local limits as the Government think fit.
(3) The Government may with a view to preserving tree growth in the interest of protecting the ecology or in public interest by notification in the Gazette direct that no tree standing in any area of non-forest land specified in the notification shall be cut uprooted, burnt or otherwise destroyed except on the ground that the tree constitutes a danger to life or property or is wind fallen:
Provided that the small holders in the area notified under this sub-section are free to cut and remove any tree except the specified trees:
Provided further that the small holders in the area notified under this sub-section may cut and remove any specified tree other than sandal wood only with the prior permission in writing of the Authorised Officer and such prior permission shall not be required for the cutting and removal of trees except specified trees:
Provided also that the owners other than small holders in an area notified under this subsection may cut and remove any tree other than sandalwood tree only with the prior permission in writing of the Authorised Officer and such permission shall not be required for the cutting and removal of trees mentioned in the Schedule:
Provided also that such permission mentioned in the second and third provisos shall not be refused by the Authorised Officer if the tree constitutes a danger to life or property or is wind-fallen;
(4) No owner including a small holder shall cut or remove any sandalwood tree in any non-forest area. Such cutting or removal may be done only by the Forest Department in the manner as may be prescribed.
(5) Where a specified tree is to be cut or any timber of a specified tree is to be transported from any non-forest land to any other place, the owner of such tree shall, before cutting the tree or transporting the timber, as the case may be, file before the Authorised Officer having jurisdiction over the area, a declaration containing details such as the survey number of the land from which the tree is to be cut, number of trees, species of trees, quantity of timber and the place to which such timber is being transported, either directly or send it by registered post with acknowledgment due.
(6) Every declaration filed under Sub-section (5) shall be acknowledged by the authorised officer forthwith and a copy of the declaration so acknowledged shall accompany the timber during its transport.
Provided that if acknowledgment from the Authorised Officer is not received within twenty days on receipt of the declaration, the same shall be deemed to have been received, if the trees are to be cut and removed from a non-notified area:
Provided further that if timber of a specified tree cut as per Sub-section (3) is to be transported from a non-forest land within the notified area, necessary inspection shall be conducted by the Authorised Officer and if it is found permissible, he may issue a transport permit in such form as may be prescribed, which shall accompany the timber during its transportation.(7) The cutting and removal of trees standing on non-forest areas, owned, controlled or vested in a Local Self Government Institution and its disposal shall be governed by such rules, as may be prescribed.
(8) An appeal against the order of refusal of permission by the Authorised Officer may be preferred before the concerned Divisional Forest Officer/Wild Life Warden within such time and in such manner as may be prescribed.
10. Therefore, if the property of petitioners 4 to 8 is not situated in a non-notified non-forest land as provided under Section 6(1) of the Act they have the right to cut and transport any tree other than the sandal wood tree, standing on his land. But that right is not available if the property is situated in a notified area.
11. Section 7 provides the penalties. Under Sub-section (1), whoever cuts, uproots, burns or otherwise destroys any tree other than sandal wood, in violation of the provisions of this Act or transports any timber contravening the provisions of Section 6 or files a false declaration shall, on conviction be punishable with imprisonment for a term which may extend to six months or with fine which may extend to twenty five thousand rupees.
12. It is thus clear that though an owner of a non forest land has an absolute right to cut and transport trees except sandalwood tree, the right is not absolute. But that right is available only if the land even if it is in anon forest land, is not in a notified area. On the other hand, if the tree is cut or transported from a non forest land in a notified area, though it is by the owner himself, still, he is liable for punishment as provided under Section 7(1), if it is in contravention of Section 6(3) of the Act. To cut or transport trees from a non forest land, if it is within the notified area, provisions of Sub-section (3) of Section 6 is to be complied with. If not complied with, it is punishable under Section 7 of the Act.
13. Kerala Promotion of Tree Growth in Non-Forest Land Rules 2006 was issued by the Government in exercise of the powers conferred under Section 15 of the Kerala Forest Promotion of Tree Growth in Non-Forest Areas Act, 2005. Rule 4 provides the conditions for permission for cutting of trees. Under the rule in deciding whether to issue permission under Section 6 of the Act, to cut, uproot or burn any tree/trees, the authorised officer shall have due regard to the matter enumerated under Clause (i) to (x).
14. Rule 5 of the said Rules provides the procedure for cutting and disposal of sandal trees in Non-Forest Areas.
15. Therefore if a tree is to be cut from a notified area, even if it is from a non forest land by its owner, permission is to be obtained as provided under Section 6(3) of the Act. If it is cut in violation of Section 6(3) he is liable to be prosecuted for the offence under Section 7 of the Act. If a tree is to be cut from a notified area, permission as provided under Sub-section (3) of Section 6 of the Act, which is to be granted as provided under Rule 4 of the Kerala Promotion of Tree Growth in Non-Forest Land Rules 2006, is to be taken. If trees were cut and transported by the petitioners, from the private property of petitioners 4 to 8, as the property is situated within the notified area, and no permission was obtained for cutting the said trees as provided under Section 6(3) of the Actor Rule 4 of the Rules, it cannot be said that petitioners cannot be prosecuted, for cutting or transporting the teak trees ,as stated in Annexure-Areport. Therefore, eventhough petitioners cannot be prosecuted for the offence under the Kerala Forest Act, they are definitely liable for prosecution for the offence under Section 7 for violation of Section 6 of Kerala Promotion of Tree Growth in Non-Forest Act, 2005. Hence Annexure-A cannot be quashed.
16. True, Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005 does not provide for confiscation, Section 9 of the Act provides the power to seize timber and other articles involved in commission of the offence under the Act. Under Sub-section (1), where any officer of the Forest Department, not below the rank of a Forester, has reason to believe that any tree has been cut or any timber has been transported in contravention of Section 6, he may seize the timber together with all tools, ropes, chains and other articles used in the commission of such offence and all vehicles, boats or animals used for carrying such timber. Therefore the vehicle used for transporting the timber in contravention of Section 6 is liable to be seized under Sub-section (1) of Section 9. Under Sub-section (2), every officer seizing any timber under Sub-section (1), shall place on such timber a mark indicating that the same has been so seized and shall, as soon as may be, make a report of such seizure to the Divisional Forest Officer having jurisdiction over the area. Under Sub-section (3), the Divisional Forest Officer to whom a report is made under Sub-section (2), shall if he is satisfied that the timber mentioned in such report is of any tree transported in contravention of Section 6, make a report of the seizure of such timber to the Judicial Magistrate of the First Class, having jurisdiction over the area in which such seizure has been made. On the other hand if he is not so satisfied, he shall order that such timber and any tool, rope, chain or other article; or any boat, vehicle or animal, seized along with it, be returned to the person from whom they were seized.
17. Section 10 provides the power to release property seized under Section 9. Under the said section, the Divisional Forest Officer, may release any tool, rope, chain or other article or any boat, vehicle or animal seized under Section 9 in respect of which a report has been made to the Judicial Magistrate of the First Class under Sub-section (3) of that section, on execution by the owner thereof, of a bond for the production of the property so released, if and when so required, before such Magistrate.
18. Section 11 provides that upon receipt of the report under Clause (a) of Sub-section (3) of Section 9, the Magistrate shall take such measures as may be necessary, for the trial of the accused and disposal of the timber, tool, rope, chain or other article or any boat; vehicle or animal seized along with it, according to law. Section 13 provides for the cognizance of the offence. Under the Section, an offence punishable under this Act shall be tried before a court of Judicial Magistrate of the First Class having jurisdiction, Section 12 provides that no prosecution shall be instituted against any person without the sanction of the Divisional Forest Officer.
19. The Act does not provide for confiscation. Therefore, petitioners are at liberty to approach the Divisional Forest Officer for releasing the vehicle as provided under Section 10 of the Act. I do not believe that if an application is filed under Section 10 of the Act, the Divisional Forest Officer will not pass orders in the application in accordance with law without delay. Hence though petitioners sought a direction, I do not find it necessary to grant.
20. In the light of the discussions the following aspects could be settled.
(i) An owner of a non forest land, if it is not within the notified area as provided under Sub-section (3) of Section 6 of the Act, is entitled to cut, uproot or transport all trees except sandalwood trees.
(ii) If the non forest land is within the notified area, specified trees can be cut, uprooted or transported only with permission as provided under Sub-section (3) of Section 6.
(iii) If any specified tree is cut from a non forest land, within a notified area, without permission and in violation of Section 6(3) of the Act it is punishable under Section 7 of the Act.
21. Hence though petitioners cannot be prosecuted for any offence under the Kerala Forest Act, they can be prosecuted under Section 7 of the Kerala Promotion of Tree Growth in Non-Forest Areas Act, 2005. But the vehicle used for commission of the offence, cannot be confiscated under the Act.