BY AD v. P.N.DAMODARAN NAMBOODIRI

to Ext.P4 order on the files of First Class Judicial Magistrate Court, Idukki and quash the same; ii) Issue a writ in nature of mandamus or any appropriate writ or order or direction and thereby direct the Judicial First Class Magistrate Court, Idukki to release the timber to the petitioners ceased in relation to O.R.8/2022 upon any conditions to the satisfaction of the court below; iii) Direct to dispose Ext.P5 petition numbered as CMP 6399/2023 in O.R.8/2022 before the Judicial First Class Magistrate Court, Idukki filed by the petitioner within a time limit as fixed by this Hon'ble Court, and till such time Ext.P4 order be kept in abeyance. iv) Grant such other reliefs, which are just and necessary in the interest of justice.”

2. Petitioner No.1 is the mother of petitioner No.2. Petitioner No.2 is accused No.1 in O.R.8/2022 of Kanchiyar Forest Station. Petitioner No.2 and two other accused are alleged to have committed offences punishable under Sections 5(2) and 9 of the Kerala OP(CRL.) NO. 784 OF 2023 3 Preservation of Trees Act, 1986 and Section 27(1)(e)(iii) of the Kerala Forest Act, 1961. The Deputy Range Forest Officer, Kanchiyar Forest Station submitted the above mentioned Final Report against petitioner No.2 and others. The husband of petitioner No.1 [father of petitioner No.2] acquired 17.48 Ares of land in Sy.No.1/1-232 of Upputhodu Village in Idukki Taluk, as per Ext.P2 Patta. On

25.11.2022, the Section Station Officer, Kattappana Camping Station inspected the premises and registered the above crime alleging that one Teak tree standing in the property has been cut and removed, in violation of the conditions imposed in Ext.P2 Patta.

3. The Deputy Range Forest Officer seized the Teak wood invoking Section 52 of the Kerala Forest Act, 1961 and Section 13 of the Kerala Preservation of Trees Act, 1986.

4. The Deputy Range Forest Officer submitted an application before the jurisdictional Magistrate seeking permission to dispose of the Teak wood on the ground that the quality of the timber would diminish with the running of time. The learned Magistrate allowed the application and passed the following order: “As per the request contained in the application referred above, sanction is hereby accorded to conduct auction of the material object (timber) involved in OR. 8/22 of Kanchiyar Forest OP(CRL.) NO. 784 OF 2023 4 Station, Ayyappancovil Range subject to the condition that the Investigating Officer shall produce photographs of the material object (timber) duly attested by the Investigating Officer along with CD, to be used in evidence at the time of trial and file compliance report before this court.”

5. Petitioner No.1 also submitted an application under Section 451 Cr.P.C. The learned Magistrate rejected the application filed under Section 451 of Cr.P.C on the ground that the Teak timber had already been ordered to be auctioned and that there is serious challenge to entitlement of the petitioner (Ext.P7).

6. The order allowing the forest officials to auction the Teak timber and the order dismissing the application for an interim custody of the same are under challenge in this Original Petition.

7. Heard the learned counsel for the petitioners and the learned Special Government Pleader (Forest).

8. The learned counsel for the petitioners submitted that the petitioners are the owners of the property in question and so the Court below ought to have considered the question of entitlement of the petitioners.

9. The learned Special Government Pleader (Forest) submitted that as per the Patta issued by the Government, by which the right to OP(CRL.) NO. 784 OF 2023 5 possess the property was given to the petitioners, the tree belongs to the Government. The learned counsel for the petitioners relied on decisions of this Court in M.T.Thankachan v. State of Kerala & Others [WP(C) No.1741/2022] and Jayakrishna Menon v. State of Kerala & Others [Crl.M.C.No.7600/2023] in support of his contentions. The learned Special Government Pleader (Forest) relied on a Division Bench judgment of this Court in Raju Sebastian v. State of Kerala [Crl.M.C.No.7347/2017], Manoj A.N. v. State of Kerala & Others [2013 (3) KHC 505], Jose v. State of Kerala & Others [2020(2) KHC 383] and the judgment in WP(C) No.804/2006 in support of his contentions.

10. The learned counsel for the petitioners would submit that the conditions imposed in Ext.P2 Patta would not elevate the findings of the petitioners to claim the title over the tree. The learned counsel further submitted that the Trial Court has not considered his right over the tree while adjudicating disposal of Exts.P3 and P7 applications. The learned Special Government Pleader would contend that the question of entitlement is the matter to be considered finally on an application under Section 452 Cr.P.C.

11. The Trial Court has disposed of the application essentially on the ground that the timber is perishable and if it is kept for a long time the quality of the same would be diminished causing loss. OP(CRL.) NO. 784 OF 2023 6

12. Section 16 of the Kerala Preservation of Trees Act, 1986 empowers the Magistrate to direct sale of any property seized under Section 13, which is subject to speedy and natural decay.

13. Section 16 of the Kerala Preservation of Trees Act, 1986 reads thus: “16. Procedure as to perishable property seized under Section 13.- (1) Notwithstanding anything herein before contained,- (a) the Magistrate to whom a report is made under Section 13 may direct the sale of any property seized under that section, which is subject to speedy and natural decay; and (b) if, in the opinion of the authorised Officer, it is necessary to dispose of the property, which is subject to speedy and natural decay, such officer shall immediately after, and in any case not later than one month from, the date of report under Section 13 make an application to the Magistrate referred to in clause (a) for permission to sell the property by such officer himself and on getting such permission, may sell the property himself, remit the sale proceeds into the nearest Government Treasury and make a report of such sale and remittance to that Magistrate and thereupon such Magistrate shall take such measures as may be necessary for the trial of the accused. (2) The Magistrate may deal with the proceeds of the sale of any property sold under clause (a) or clause (b) or sub-section (1) in the same manner as he might have dealt with the property if it has not been sold.” OP(CRL.) NO. 784 OF 2023 7

14. The learned Magistrate invoking Section 16 and having found that the property is subjected to natural decay ordered auction of the timber.

15. In Ext.P7 impugned order, the learned Magistrate also observed that there is serious challenge to the ownership of the property in dispute. Therefore, the learned Magistrate has not finally made any adjudication on the ownership of the property and the same is in fact, pending consideration. Both sides addressed arguments on the right of the property in question. The learned Special Government Pleader brought to my notice to the conditions imposed in Ext.P2 Patta which read thus: “1. The full right over all the trees within the grant and specified in the schedule vests in the Government and the assignee is bound to take care of all such trees standing on the land at the time of assignment or that may come into existence subsequent to it.

2. The assignee is bound to afford all facilities to the Officers of Government in the matter of inspecting the land periodically for checking the trees referred to in condition (1) above and removing them, if necessary.

3. All established rights of way and other easement right shall be respected by the assignee.

4. The land revenue or any tax or fee levied in lieu thereof on the land will be liable to revision.” Relying on these conditions the learned Special Government OP(CRL.) NO. 784 OF 2023 8 Pleader submitted that the tree vested with the Government and the owner of the land has no right over a tree which was in existence at the time of grant and that may come into existence subsequently.

16. In Raju Sebastian (supra), a Division Bench of this Court had considered a similar fact situation. The Division Bench, relying on the pari materia conditions in a Patta, held that conditions 1 and 2 therein clearly restrict the rights of the claimant therein as far as cutting and removing of trees mentioned in the schedule concerned. Following the judgment of the Division Bench of this Court in Raju Sebastian (supra), in Jose (supra), a Single Bench of this Court considered a similar fact situation and held that in view of the specific condition contained in the Patta, the full right over all tress within the grant standing on the land at the time of assignment or that may come into existence subsequent to it belongs to the Government. In Manoj A.N.(supra) also this Court considered a similar question relying on Ext.R2(b) judgment. This Court held that the purport of the conditions is that if the trees are one of the species mentioned in the schedule whether the trees were standing on the land at the time of assignment or came into existence subsequent to the assignment, the trees would belong to the Government.

17. The learned counsel for the petitioners relied on the judgment of this Court in WP(C) No.1741/2022, wherein this Court OP(CRL.) NO. 784 OF 2023 9 has considered the conditions in a Patta and observed that the trees that came into existence subsequent to the assignment are not vested in the Government in the absence of any specific provision in that regard.

18. The Patta considered by this Court in WP(C) No.1741/2022 has not been placed before this Court. The learned Special Government Pleader submitted that this Court in WP(C) No.1741/2022, has only made an observation, which is not a ratio as the question involved herein was not considered by this Court in that Writ Petition.

19. In Crl.M.C.No.7600/2023, this Court while considering an application for interim custody of an elephant observed thus: “In the light of the above decision, it is clear that the point to be decided at the stage of Section 451 Cr.P.C. is who is the best suited person for possession of the property pending trial. If there are rival claimants, who has got the better title can be decided by the Court at the stage of Section 451 Cr.P.C. subject to the final decision to be taken under Section 452 Cr.P.C. upon the conclusion of the trial. Therefore, who has got better title as far as the elephant in question is concerned, is the point to be decided in this case.”

20. In the present case, admittedly the property involved is perishable in character. The Trial Court has not considered the question as to the title of the tree involved. The Trial Court is OP(CRL.) NO. 784 OF 2023 10 empowered to order auction of the property, which is perishable in character by invoking Section 58 of the Kerala Forest Act and Section 16 of the Kerala Preservation of Trees Act. The Trial court has therefore exercised its discretion reasonably.

21. The question regarding the title of the property is left to be decided after the trial, in view of the fact that the property involved is perishable in character. I feel that the orders impugned require no interference. It is made clear that I have not made any observation on the ownership of the property. That matter is left to be decided at the stage of considering the petition under Section 452 of Cr.P.C by the Trial Court. With the above observations, this Original Petition is disposed of. The competent Authority shall deposit the sale proceeds in a Fixed Deposit Scheme subject to the final decision on the matter. Sd/- K. BABU, JUDGE OP(CRL.) NO. 784 OF 2023 11 APPENDIX OF OP(CRL.) 784/2023 PETITIONER EXHIBITS Exhibit -P1 TRUE COPY OF THE TAX RECEIPT SHOWING THE PAYMENT OF PROPERTY TAX DATED 25.09.2023 IN UPPUTHODE VILLAGE FOR THE YEAR 2023 - 2024 IN THANDAPER NO.3136. TRUE COPY OF THE PATTAYAM BEARING NO.1140 DATED 21.05.1976 ON THE FILES OF SPECIAL TAHSILDHAR, NEDUMKANDOM ISSUED IN THE NAME OF N. PEETHAMBARAN. TRUE COPY OF THE APPLICATION DATED 16.06.2023 SUBMITTED BY THE 1ST RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, IDUKKI. TRUE COPY OF THE ORDER NO.T1737/23 DATED 01.07.2023 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT, IDUKKI. TRUE COPY OF THE PETITION NUMBERED AS CMP.6399/2023 IN O.R.8/2022 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, IDUKKI . TRUE COPY OF A STATEMENT ALONG WITH ANNEXURES IN THE C.M.P.6399/2023 FILED BY THE 2ND RESPONDENT. TRUE COPY OF THE ORDER NO.C.M.P. 6399/2023 DATED 07.10.2023 ISSUED BY THE JUDICIAL MAGISTRATE OF THE 1 CLASS-1, IDUKKI. TRUE COPY OF THE GAZETTE NOTIFICATION NO.8/2018/FOREST DATED 26.07.2018. true copy of the Form11 Report of the case. true copy of the judgement in wpc TRUE COPY P.A TO JUDGE Exhibit -P2 Exhibit -P3 Exhibit - P4 Exhibit -P5 Exhibit -P6 Exhibit -P7 Exhibit -P8 RESPONDENT ANNEXURES ANNEXURE R2(a) ANNEXURE R2(b) LSN