A. Badharudeen, J.
1. Crl.M.C.No.1838/2021 has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' for short) by the
petitioner, who is the 3rd accused in O.R.No.2/2020 of Marayoor Forest Range, for quashment of Annexure 1, viz., O.R.No.2/2020, of Marayoor
Forest Range.
2. Crl.M.C.No.2697/2021 has been filed under Section 482 of Cr.P.C by the petitioner, who is registered owner of a goods carriage, bearing
Registration No.KL-62-A-1140, for setting aside Annexure A2 seizure report in the above crime and for the release of the above vehicle.
3. Heard the learned counsel for the petitioners and the learned Senior Government Pleader appearing for the Forest Department.
4. The parties and the documents in these cases shall be referred to in this order as to their description in Crl.M.C.No.1838 of 2021.
5. In this matter, O.R.2/2020 of Marayoor Forest Range has been registered alleging commission of offence punishable under Section 52 of the
Kerala Forest Act and it is alleged therein that on 02.10.2021, the Forest Officer intercepted and seized `vembu trees' collected from private property,
when the vehicle carrying the above contraband was stationed at Karimutti near Marayoor. The allegations in the report run on the premise that the
above `vembu trees' situated in S.R.No.51, reserved forest were cut and removed against the prohibitions contained in Section 52 of the Kerala Forest
Act.
6. The learned counsel for the petitioners highlighted Annexure 8 circular dated 11.03.2020 issued by the Revenue Department to justify cut and
removal of `vembu trees' from property having an extent of 0.60.70 (1 ½ acre), situated in old Survey No.238/1 in block No.48 in Sub Division
No.277 of Devikulam village. It is argued by the learned counsel for the petitioners that the above extent of land was assigned in favour of Chapli,
S/o.Palani and Smt.Pappa, W/o.Chapli, House No.97, Karimutty Hill Pulaya Colony, Marayoor, as per Annexure 9 patta issued on 29.12.2001.
Annexure-9(a) is the patta in favour of the above persons and similarly, Annexures-9(b) and 9(c) are also pattas issued respectively in favour of
Meenakshi, D/o.Sundaram and Chadayan, S/o.Late Mari and others. Relying on Annexure-8 circular, the learned counsel for the petitioner argued
that as per the circular, the Revenue Department clarified that as per G.O(P).No.60/2017/Rev. SRO No.621/17 the patta holders would have right to
cut and remove trees except sandal wood which were grown by them. It is submitted by the learned counsel for the petitioners further that the above
circular was issued to clarify the anomaly prevailed in this regard. The cardinal point argued by the learned counsel for the petitioners is that since as
per Annexure-8 circular, cut and removal of `vembu trees' from the property for which patta was issued, is within the sanction of law, no offence as
alleged in the present crime would attract. Therefore, the occurrence report as well as recovery mahazar are liable to be quashed.
7. The learned Senior Government Pleader zealously argued that Annexure-8 has no legal sanctity since the same is not the law, enacted by the
legislature. Further he submitted that Annexure-8 circular is against the statutory provisions and any circular issued by the Government or its
Departments without the authority of the Governor, that too, against the statutory provisions, is bad in law and the same cannot supersede the statutory
provisions. In this connection, the learned Senior Government Pleader placed various decisions of the Apex Court as well as this Court. He has
pointed out the decision of the Apex Court reported in [(2014) 10 SCC 673], Gulf Goans Hotels Company Limited & anr. v. Union of India &
Ors. to contend that in the absence of due authentication and promulgation of the guidelines, the contents thereof cannot be treated as an order of the
Government and would really represent an expression of opinion. In law, the said guidelines and their binding effect would be no more than what was
expressed by the Apex Court in [(2011) 8 SCC 670 : (2011) 4 SCC (Civ) 325 : (2011) 3 SCC (Cri) 542 : (2011) 2 SCC (L&S) 410U], ttaranchal v.
Sunil Kumar Vaish. Another decision reported in [(2011) 12 SCC 94], Jaipur Development Authority & Ors. v. Vijay Kumar Data & anr. is
highlighted to substantiate that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed
by the rules, the same cannot be treated as an order made on behalf of the Government.
8. The decision of the Apex Court reported in [(2008) 13 SCC 1],C ommissioner of Central Excise, Bolpur v. Ratan Melting & Wire Industries
has been placed to contend that in so far as clarification/circulars issued by the Central Government and of the State Government are concerned, they
represent merely an understanding of the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular
portion of the statute says and it is not for the executive. In para.7 of the above judgment it has been observed as under:
“7. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or
the High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given
effect to and not the view expressed in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of
the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the court
to declare what the particular provision of statute says and it is not for the executive. Looked at from another angle, a circular which is contrary to the statutory
provisions has really no existence in law.â€
9. Another decision reported in [(2013) 11 SCC 262], B.Rugmini Amma & anr. v. B.S.Nirmala Kumari & Ors. has been placed to contend that the
effect of clarificatory Government order cannot, by any means, supersede or override the terms of the main order and this is an elementary principle
of interpretation. The relevant observations in paragraph 12 are extracted hereunder:
“12. The above stated effect of the clarification, if accepted, would occasion in corollary that after 17.6.1988, graduate typists/confidential assistants will
always have priority over non-graduates though such non-graduates may have passed the qualifying examination and are otherwise eligible for promotion. If the
above meaning is to be attributed to the clarificatory G.O the same would surpass the main G.O. dated 17.6.1988. The effect of the clarificatory G.O. cannot, by
any means, supersede or override the terms of the main order. This is an elementary principle of interpretation. This is precisely how the High Court has
understood the issue before it and has held that the original G.O. dated 17.6.1988 merely exempts graduate typists/confidential assistants from passing the
suitability test and no further. If that is the true purport and effect of the G.O. hated 17.61988, on which we have no doubt, naturally, the clarificatory G.O. has to
be restricted in its meaning as has been done by the High Court and cannot be allowed to work to the undue advantage of the graduates and to the detriment of
the non-graduates.â€
10. Decision of this Court reported in [(2018) (4) KHC 827],O ne Earth One Life v. Ministry of Environment and Forests & Ors. is also placed to
buttress the point that after a transfer of registry in respect of the land whereby the State Government relinquished its title over the land in favour of
the assignee, the notification declaring the lands as Reserved Forests would continue to apply in respect of the said lands, so as to impose restrictions
with regard to the manner of use of the lands.
11. Similarly, in the decision reported in [ILR 2016 (1) Ker. 817 : 2015 KHC 7103 : AIR 2016 NOC 369 : 2016 (4) KLT SN 101]S, tate of Kerala &
Ors. v. New World Investment (P) Ltd. & Ors. this Court considered Section 22 of the Forest Act, 1951, which provides that no right of any
description shall be acquired in or over a reserved forest except under a grant or contract in writing made by or on behalf of the Government or by or
on behalf of some person in whom such right or the power to create such right was vested when the notification under Section 19 was issued or by
succession from such person. It is also observed that the Forest Conservation Act was intended to provide for protection of forest and for such other
incidental purposes and the provisions will have overriding effect on all other laws. The diversion of any forest land will require prior approval of the
Central Government under Section 2 and under Section 4, the Forest (Conservation) Rules, 1981 have been framed which provide for the composition
of Advisory Committee and how the proposal for diversion of forest land, is to be dealt by the authorities. It is further observed that neither the word
“Forest†nor “Forest land†are defined in the Act or the Rules, but the courts have recognised that all areas recorded as Forests in the
Government records irrespective of ownership, should be understood as Forest under the Act and the Rules.
12. It is also observed in the above decision that when a Special Leave Petition was filed against the Full Bench judgment dated 07.10.1999, the
Supreme Court in Nature Lovers Movement v. State of Kerala, reported in [2009 (5) SCC 373 : 2009 KHC 327 : 2009 (4) SCALE 132 : 2010 (1)
MPLJ 294 : 2010 (1) Mah LJ 705] on account of the approval granted by the Central Government, refused to interfere with the action taken by the
State Government to regularise the encroachment in the forest land in the five districts. However, in the same context, the Apex Court also indicated
that the word “forest†in the Forest Conservation Act will not only include “forest†as is understood in the dictionary sense, but shall also
cover any area recorded as forest in the Government records, irrespective of ownership.
13. In State of Kerala v. New World Investments (P) Ltd. (supra) the Division Bench was referring to the provisions of the Forest Act, 1961 (Kerala
Act 4 of 1962) and observed that, when an area is declared as reserve forest, there is prohibition of right of any description over the reserve forest
and the statutory scheme admits only two contingencies (i) grant or contract in writing made by or on behalf of the Government and (ii) by or on
behalf of some persons in whom such right or the power to create such right is vested when the notification under S.19 was published or by
succession from such person.
14. In this case, the prosecution alleges commission of offence punishable under Section 52 of the Kerala Forest Act. Section 52 provides as under:
“52. Seizure of property Liable to confiscation. - (1) When there is reason to believe that a forest offence has been committed in respect of any timber or other
forest produce, such timber or produce, together with all tools, ropes, chains, boats, vehicles and cattle used in committing any such offence may be seized by any
Forest Officer or Police Officer.â€
15. It is submitted by the learned Senior Government Pleader that as per Section 3 of the Kerala Forest (Prohibition of Felling of Trees Standing on
Land Temporarily or Permanently Assigned) Rules, 1995, published with effect from 10.10.1995, all trees standing on lands temporarily or
permanently assigned, the right of the Government over which has been expressly reserved in the deed of grant or order of assignment of such land,
shall be the absolute property of Government. He also argued that no person shall fell, lop, cut or maim or otherwise maltreat any tree which is the
property of Government without prior sanction granted by the Divisional Forest Officer having jurisdiction over the area and any of the overt acts
would attract offence punishable under Section 7 of the above Rules.
16. At the outset, it has to be held that Section 3 or 4 and 7 of the above Rules have no application in the present case since Section 3 deals with trees
standing on lands temporarily or permanently assigned, which have been expressly reserved in the deed of grant or order of assignment of such land.
In this matter evidently, Annexure-9(a), 9(b) and 9(c) `pattas' were issued in favour of the persons named herein above and in the said `pattas', no
restriction, as contemplated under Section 3, seen imposed. It is in this context, the learned counsel for the petitioners argued that since `pattas' have
been issued in respect of the property, where from `vembu trees' were alleged to be cut and removed, the title of the patta holders become absolute
subject to the conditions stated in the `pattas'. He also argued that in case anybody is aggrieved in the matter of issuance of `pattas', the order issuing
`pattas' shall be challenged in appeal. No such procedure was adopted in the present case.
17. Whereas it is submitted by the learned Senior Government Pleader that the `pattas' issued in the present case are ab initio void in view of the
specific provisions under Section 22 of the Kerala Forest Act. Section 22 of the Kerala Forest Act provides as under:
“22. No right acquired over Reserved Forests except as herein provided. - No right of any description shall be acquired in or over a Reserved Forest except
under a grant or contract in writing made by or on behalf of the Government or by or on behalf of some person in whom such right or the power to create such
right was vested when the notification under section 19 was published or by succession from such person:
Provided that no patta shall, without the previous sanction of the Government, be granted for any land included within a Reserved Forest and every patta
granted without such sanction shall be null and void.
Going by the proviso to Section 22, the statutory wording is very clear that no patta shall, without the previous sanction of the Government, be granted
for any land included within a Reserved Forest and every patta granted without such sanction shall be null and void. In the present case, Annexure-9
series pattas would not suggest that the same were issued with previous sanction of the Government. If so, the said pattas are hit by transfer to
Section 22 of the Kerala Forest Act. Therefore, it could not be held that the above pattas conferred absolute right upon the patta holders.
18. The legal principles emerge from the above discussions are under:
(i) In the absence of due authentication and promulgation of the guidelines, the contents thereof cannot be treated as an order of the Government and would really
represent an expression of opinion. In law, the said guidelines and their binding effect would be no more than what was expressed by this Court in [(2011) 8 SCC 670 :
(2011) 4 SCC (Civ) 325 : (2011) 3 SCC (Cri) 542 : (2011) 2 SCC (L&S) 410], Uttaranchal v. Sunil Kumar Vaish;
(ii) Unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated
as an order made on behalf of the Government;
(iii) Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the
High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and
not the view expressed in a decision of this Court or the High Court.
(iv) So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of
the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular provision of statute says and it is not for the executive;
(v) A circular which is contrary to the statutory provisions has really no existence in law;
(vi) The effect of the clarificatory G.O. cannot, by any means, supersede or override the terms of the main order. This is an elementary principle of interpretation.
(vii) No right of any description shall be acquired in or over a reserved forest except under a grant or contract in writing made by or on behalf of the Government or by
or on behalf of some person in whom such right or the power to create such right was vested when the notification under Section 19 was issued or by succession
from such person, under Section 22 of the Kerala Forest Act.
(viii) Forest Conservation Act was intended to provide for protection of forest and for such other incidental purposes and the provisions will have overriding effect
on all other laws.
(ix) The diversion of any forest land will require prior approval of the Central Government under Section 2 and under Section 4, the Forest (Conservation) Rules, 1981
have been framed which provide for the composition of Advisory Committee and how the proposal for diversion of forest land, is to be dealt by the authorities. It is
further observed that neither the word “Forest†nor “Forest land†are defined in the Act or the Rules, but the courts have recognised that all areas recorded
as Forests in the Government records irrespective of ownership, should be understood as Forest under the Act and the Rules.
(x) the word “forest†in the Forest Conservation Act will not only include “forest†as is understood in the dictionary sense, but shall also cover any area
recorded as forest in the Government records, irrespective of ownership.
(xi) when an area is declared as reserve forest, there is prohibition of right of any description over the reserve forest and the statutory scheme admits only two
contingencies (i) grant or contract in writing made by or on behalf of the Government and (ii) by or on behalf of some persons in whom such right or the power to
create such right is vested when the notification under S.19 of the Forest Act was published or by succession from such person,
(xii) as per Section 3 of the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995, published with effect
from 10.10.1995, all trees standing on lands temporarily or permanently assigned, the right of the Government over which has been expressly reserved in the deed of
grant or order of assignment of such land, shall be the absolute property of Government. He also argued that no person shall fell, lop, cut or maim or otherwise
maltreat any tree which is the property of Government without prior sanction granted by the Divisional Forest Officer having jurisdiction over the area and any of the
overt acts would attract offence punishable under Section 7 of the above Rules.
(xiii) No right of any description shall be acquired in or over a Reserved Forest except under a grant or contract in writing made by or on behalf of the Government or
by or on behalf of some person in whom such right or the power to create such right was vested when the notification under section 19 was published or by
succession from such person:
Provided that no patta shall, without the previous sanction of the Government, be granted for any land included within a Reserved Forest and every patta granted
without such sanction shall be null and void.
19. In this case, though pattas were issued without applying for sanction provided under the proviso to Section 22 of the Kerala Forest Act, it is an
undisputed fact that the property is part of the Reserved forest. However, the learned counsel for the petitioners given emphasis to Annexure-4 report
filed by the Village Officer dated 20.08.2020 stating that the property in Re-survey No.277/1 in block No.48 having an extent of 01.82.10 Hectares
property and the trees therein are not the property of the Government. Annexure-5 and Annexure-6 respective tax receipts also have been placed to
substantiate continuous possession of the property by the patta holders in consequence of issuance of pattas. Since it is established that the property
wherefrom the `vembu trees' werre cut and removed is `Reserve Forest', this contention could not yield.
20. The crucial question is, what is the legal effect of Annexure-8 circular. In order to look into this aspect, the recitals in Annexure-8 circular,
produced in Crl.M.C.No.1838/2021 is relevant and, therefore, the same is extracted hereunder:
21. In this matter, evidently, as per Annexure-11 G.O.No.30/2021 dated 02.02.2021, Annexure-8 order was cancelled. The reasons for cancellation
are stated in para.3 of the order, which reads as follows:
22. The alleged cut and removal of `vembu trees' was on 2.10.2021. During the said period, Annexure-8 circular was in force. The specific case put
up by the petitioners is that in view of Annexure-8 circular issued by the Government permitting cut and removal of trees (except sandal wood) lying
in the assigned land, the farmers were permitted cut and removal till cancellation of the said order as per Annexure-A2 dated 2.2.2021. Hence the
alleged cut and removal of `vembu trees' from the property in the present case cannot be held as an offence. However, the case of the Forest
Department is that Annexure-8 order has no legal effect.
23. Having appraised the rival arguments, the conclusion that could be reached is that in view of the legal principles discussed in para.18 of this order,
Annexure-8 circular has no legal effect at all. Therefore, cut and removal of `vembu trees' in the present case otherwise prohibited by law is an
offence under Section 52 of the Kerala Forest Act, 1961. Therefore, the criminal prosecution initiated in this regard in O.R.2/2020 or the seizure
report in consequence thereof are not liable to be quashed.
Therefore, both petitions fail and are accordingly dismissed.
However, it is made clear that the petitioners herein can raise these contentions before the Magistrate Court during trial to resist the case advanced by
the Forest Department, in accordance with law.
