P.J. Sebastian vs The Addl. Tahsildar and The Revenue Divisional Officer

Antony Dominic, J.—In this writ petition, Ext.P2 and P5 orders passed under the provisions of the Kerala Land Conservancy Act are under challenge. According to the petitioner in the property in Sy. No. 136/1, of block No. 55, having an extent of 5.54.50 hectors belonging to his wife and children, there were 7 rose wood stumps. In order to cut and remove the same, petitioner applied for cutting permits. Accordingly, inspection was conducted by the Village Officer and Ext.P1 report was submitted to the Forest Range Officer certifying that the rose wood stumps are situated in the aforesaid property and that the property is held by the petitioner''s family on registration. Petitioner submits that in the meanwhile, he entered into an agreement with a timber merchant and that the timber merchant had obtained passes to cut and remove the rose wood stumps.

Petitioner thereafter came to know that there were certain reports that, in the process of cutting the aforesaid 7 rose wood stumps, more number of trees were cut and removed and that without any notice to him, or any one in his family, the property was surveyed. According to the petitioner, first respondent thereafter issued a notice to him, proposing to initiate proceedings u/s 10 of the Kerala Land Conservancy Act. Petitioner appeared before the first respondent. Though no enquiry was held, Ext.P2 order was issued by the first respondent concluding that 4 trees were unauthorizedly cut from the purambokku property and that the petitioner should pay Rs. 1,34,942/- towards damages and Rs. 500/- towards fine. Aggrieved by Ext.P2, petitioner filed Ext.P3 appeal before the Revenue Divisional Officer, where he also submitted Ext.P4 argument notes. However, by Ext.P5 order, his appeal was also rejected. It is challenging Ext.P2 and P5 that this writ petition is field.

The main contentions raised by the learned Counsel for the petitioner are that impugned orders have been issued without any materials connecting the petitioner with the alleged offence and that these orders were issued in violation of the principles of natural justice and on erroneous findings.

Learned Government Pleader attempted to sustain the aforesaid impugned orders. According to the Government Pleader, in response to the notice that was issued prior to Ext.P1, petitioner appeared before the first respondent who recorded his statement also. It is stated that it was only after the enquiry thus conducted, the impugned orders were issued. Learned Government Pleader also contended that on the evidence it was proved that the petitioner had unauthorizedly appropriated four rose wood trees and that therefore in terms of the provisions contained in Section 10 of the Kerala Land Conservancy Act, he is bound to pay compensation.

The impugned orders are Exts.P2 and P5. A reading of these orders show that the respondents have relied on several materials including statements and reports to conclude the guilt of the petitioner. Neither the impugned orders nor the counter affidavit filed in this writ petition show that any of the materials which were relied on against the petitioner were disclosed to him. As rightly contended by the learned Counsel for the petitioner, it is an elementary principles of natural justice that in a proceedings of this nature, any document or evidence relied on against one of the parties should be disclosed to him and on that basis he should be afforded an opportunity to defend himself. In this case admittedly the documents relied on against the petitioner were not disclosed to him. On the other hand after recording the statement of the petitioner and arriving at a conclusion based on the documents which are available with the respondents the impugned order was passed. In my view, the course adopted by the first respondent is in total violation of the principles of natural justice. Therefore the findings in Ext.P1 order or Ext.P5 order confirming Ext.P1, cannot be sustained. Now that Ext.P1 order has set aside for violation of principles of natural justice, respondents are entitled to proceed afresh against the petitioner in complying with the principles of natural justice.

The impugned order also shows that the first respondent has imposed a fine of Rs. 500/- on the petitioner. A plain reading of Section 10 of the Land Conservancy Act shows that the power to levy fine can be exercised only by a Magistrate and cannot be exercised by the first respondent or the appellate authority. Therefore the fine imposed on the petitioner as per the impugned order is without jurisdiction.

However, yet another contention raised by the counsel for the petitioner needs to be noticed. In the impugned orders it is seen that the respondents have relied on an application allegedly made by the petitioner''s son. It is stated that in that request , the petitioner''s son had sought release of the timber that was extracted from the registered holding and from this material, it was concluded that the petitioner''s son admitted that a portion of the timber was extracted from the purambokku land. The positive case of the petitioner is that his son did not make any such request and that at the relevant time, his son was working in the Middle East. He has also produced the passport of his son to substantiate this contention. In any case it is for the petitioner to produce the materials to substantiate this contention also and to satisfy the respondents about the genuineness of this plea and I leave it at that.

In the light of the discussions as above, the writ petition is disposed of quashing Exts.P2 and P5 and leaving it open to the first respondent to proceed afresh, disclosing the materials that are sought to be used against the petitioner. The proceedings shall be expedited and completed as expeditiously as possible and at any rate within 6 months.