Instrumentation Ltd. vs The State of Kerala

A. Hariprasad, J.—Petition filed under Section 482 of the Code of Criminal Procedure (in short, "Cr.P.C.").

Petitioner herein is a company incorporated under the Companies Act, 1956 and it is a Government of India undertaking. The company is represented by its General Manager. Forest Range Officer, Walayar registered O.R. No. 3 of 2010 of Walayar Forest Range alleging that the petitioner/accused has committed offences under Section 27(1)(e) (iii), (iv) and (b) of the Kerala Forest Act, 1961 (in short, "the Act of 1961").

I heard Shri U.K.Devidas, learned counsel appearing for the petitioner/accused and Shri M.P.Madhavankutty, learned Special Government Pleader. I have carefully perused the records.

It is an admitted fact that the petitioner company at present owns and possesses 55.5632 hectares (equivalent to 138 acres) of land in Block 35, survey No. 37/2 of Puthussery West Village. Factory of the company and the township are situated in the said property. Forest Department has a contention that a portion of the property is an ecologically fragile land coming under the provisions of the Ke rala Forest (Vesting and Management of Ecologically Fragile Lands) Act, 2003 (in short, "the Act of 2003"). Section 2(c) of the Act of 2003 defines `forest'' in the following terms:

""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 long 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."

Section 2(b) of the Act of 2003 defines ''ecologically fragile land'' as follows:

""ecologically fragile lands" means,-

(i) any forest land or any portion thereof held by any person and lying contiguous to or encircled by a reserved forest or a vested forest or any other forest land owned by the Government and predominantly supporting natural vegetation; and

(ii) any land declared to be an ecologically fragile land by the Government by notification in the Gazette under Section 4."

It is the allegation in Annexure-II (Forest offence seizure report) that the petitioner on 22.01.2010 cut and removed large number of valuable trees from a land which falls within Section 2(b) of the Act of 2003. The length and girth of tress allegedly cut and removed by the company are shown in Annexure-I. It is alleged by the Forest Range Officer that the company had committed the above said offences.

Learned Special Government Pleader submitted that as per Section 3 of the Act of 2003, the ecologically fragile land is to vest in the Government. With reference to Section 5 of the Act of 2003, learned Special Government Pleader submitted that the ecologically fragile land to be deemed to be a reserve forest. The penal provision is contained in Section 27 of the Act of 1961. It reads as follows:

"Penalties for trespass or damage in Reserved Forests and acts prohibited in such forests.- (1) Any person who-

(a) does any act prohibited by Section 7; or

(b) sets fire to a Reserved Forest or kindless leaves burning any fire in such manner as to endanger the same; or

(c) sets fire to jungles or forests other than Reserved Forest and a land proposed to be constituted a Reserved Forest without taking precautionary measures to prevent the spread of fire into Reserved Forest and land proposed to be constituted a Reserved Forest; or

(d) knowingly receives or has in possession of any forest produce illicitly removed from a Reserved Forest or a land proposed to be constituted a Reserved Forest; or

(e) in a Reserved Forest or in a land proposed to be constituted a Reserve Forest-

(i) cultivates or clears or breaks up any land for cultivation or for any other purpose or puts up any shed or other structures or plants trees; or

(ii) damages, alters or removes any wall, ditch, embankment, fence, hedge or railing; or

(iii) cuts or fells any trees or girdles, marks, lops, taps, uproots, burns, saws, converts or removes any tree including fallen or felled, or strips off the bark or leaves from or otherwise damages the same;

(iv) trespasses or pastures cattle or permits or causes cattle to trespass; or

(v) quarries, stones, burns lime or charcoal or collects or subjects to any manufacturing process or removes any forest produce; or

(vi) causes any damage by negligence in felling any tree, reed or cutting or dragging any timber; shall be punished with imprisonment for a term which shall not be less than one year but may extend to five years and with fine which shall not be less than one thousand rupees but may extend to five thousand rupees in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid.

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If any agricultural or other crop is grown or any shed or other structure is put up in contravention of clause (e) of sub-section (1) and any person is convicted for that offence, such crops, sheds or other structures shall be liable to confiscation by order of the convicting Magistrate.

Nothing in this section shall be deemed to prohibit-

(a) any act done in accordance with any rule made by the Government or with the permission in writing of the Chief Conservator of Forests, Conservator of Forests or the Divisional Forest Officer or of an officer authorised by any of them to grant such permission; or

(b) the exercise of any right continued under Section 17 or created by grant or contract in the manner described in Section 22: Provided that this section shall not be held to interfere with such working of the forest as may be ordered by the Chief Conservator of Forests, Conservator of Forests or the Divisional Forest Officer."

Learned counsel for the petitioner submitted that the petitioner had approached this Court with W.P.(C) No. 5784 of 2010 and the same was disposed by this Court as per Annexure-IV judgment dated 10.03.2010. The contention raised by the rival parties were taken note of by this Court and disposed the matter directing the petitioner to approach the 2nd respondent, the Principal Chief Conservator of Forests and Custodian, Office of the Chief Conservator of Forest (Wild Life), Thiruvananthapuram, requesting to invoke jurisdiction under Section 19(3) (b) of the Act of 2003. Pursuant to that, the company approached the Custodian of Ecologically Fragile Lands with a petition and an order dated 16.05.2011 was passed in that matter. The order passed by the Custodian of Ecologically Fragile Lands is produced as Annexure-V. After discussing the rival contentions, the Custodian of Ecologically Fragile Lands by virtue of his powers under Section 19(3)(b) of the Act of 2003 ordered as follows:

"Having thus convinced that the area is not satisfying the definition of ecologically fragile land as defined under 2(b)(i) of the EFL Act as on 02.06.2000, the report of the committee is accepted. Section 19(3)(a) of the EFL Act states that "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 vested in Government." Therefore it is decided that the land in Resurvey No. 37/2 notified as ecologically fragile land as per the notification in reference (1) under Sl.No.49 and covered with buildings and other establishments needed for the functioning of M/s. Instrumentation Limited has to be excluded from the notification. In the above circumstances, I, K.P.Ouseph, Custodian of Ecologically Fragile Lands hereby order to survey and demarcate the remaining land claimed by the applicant company, in survey number 37/2, Block No. 35 in Pudussery West Village, Palakkad Taluk, Palakkad District under the jurisdiction of Walayar Forest Range, Palakkad Forest Division notified as per reference (1), and to exclude the said land having buildings and other establishments from the notification and to issue a revised notification as stipulated in Section 19(3)(b) of Ecologically Fragile Lands Act read with Rule 20 of the Kerala Forest (Vesting and Management of Ecologically Fragile Lands) Rules, 2007. The application submitted by Sri.N.K.Shrivastava, General Manager, M/s. Instrumentation Limited, Kanjikode West, Palakkad under Section 19(3)(b), is disposed of as above."

Considering the fact that there is a clear finding in the above order that the land in dispute did not satisfy the definition of ecologically fragile land under the Act of 2003 as on 02.06.2000, the learned counsel for the petitioner company submitted that no offence was made out and the prosecution is without any legal basis. This submission is legally acceptable because the substratum of the prosecution case has been lost by the finding of the competent authority under the Act of 2003.

In the result, the petition is allowed. All proceedings against the petitioner in O.R. No. 3 of 2010 of Walayar Forest Range, pending before the Judicial First Class Magistrate Court-I, Palakkad are hereby quashed.

All pending interlocutory applications will stand dismissed.