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K.R. Pusphan Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 44 of 1984
Judge
Reported inAIR1985Ker184
ActsKerala Forest Act, 1961 - Sections 61A and 61D
AppellantK.R. Pusphan
RespondentState of Kerala and ors.
Appellant Advocate T.C.N. Menon, Adv.
Respondent AdvocateAdv. General
Excerpt:
- - we are of the opinion that the failure on the part of the appellant to implead the registered owner of the vehicle, as a party to the appeal, would not by itself oust the jurisdiction of the district judge to entertain and decide the appeal filed under section 61d of the kerala forest act, 1961, act 4 of 1962 (the act). 3. the said section provides thus :61d......reversing the order of confiscation of the tempo van involved in the case by the divisional forest officer, malayattur, the authorised officer under the forest act. the appellant was the hirer in respect of the vehicle. the authorised officer by his proceedings ext. p1, ordered confiscation, as it was, according to him, found to carry contraband article, that is to say, timber which belonged to the forest. on appeal, the district judge, after having considered the evidence adduced before him, recorded the following findings : --'(i) the value of the tempo van used for the commission of the forest offence is rs. 80,000/- whereas the value of the timber that was illicitly carried in the van is only rs. 200/-; (ii) the case of the registered owner of the van the hirer and the driver.....
Judgment:

Bhaskaran, Ag. C.J.

1. This appeal is directed against the judgment in O.P. No. 6346 of 1983 (reported in 1984 Ker LT 257), The writ petition was for quashing Ext. P2 judgment of the2nd respondent, the District Judge, Ernakulam, in C.M.A, No. 36 of 1983 dated 22-7-1983, reversing the order of confiscation of the tempo van involved in the case by the Divisional Forest Officer, Malayattur, the authorised officer under the Forest Act. The appellant was the hirer in respect of the vehicle. The authorised officer by his proceedings Ext. P1, ordered confiscation, as it was, according to him, found to carry contraband article, that is to say, timber which belonged to the Forest. On appeal, the District Judge, after having considered the evidence adduced before him, recorded the following findings : --

'(i) The value of the Tempo Van used for the commission of the forest offence is Rs. 80,000/- whereas the value of the timber that was illicitly carried in the van is only Rs. 200/-;

(ii) The case of the registered owner of the van the hirer and the driver that they have taken all reasonable and necessary precautions against the use of the van for committing the forest offence has been accepted by the Authorised Officer;

(iii) The cleaner who used the van for committing the forest offence, took away the van unauthorisedly at a time when the appellant and its permanent driver were away;

(iv) Since, the cleaner of the van had no badge for driving a public career, even though, he had a valid driving licence, it is clear that he has no right to drive the van at the relevant time and his act in driving the vehicle is an offence punishable under the Motor Vehicles Act;

And

(v) The version given by the cleaner before the Authorised Officer that he bona fide believed that the timber carried in the van was collected from an Estate, has not been rejected by the Authorised Officer;

And

(vi) There is no case for the Forest Officials that the cleaner of the van had driven the van in dispute at any time previously for transporting any material, and, thereby augmented the income of the appellant.'

It is to quash the decision based on these findings that the writ petition was filed. The learned Judge formulated the following two questions for considerations : --

(1) 'Whether the District Judge sitting in appeal had jurisdiction to decide confiscation of the vehicle without the owner on the party array; and

(2) Whether the District Judge had committed any patent error in releasing the vehicle?'

2. On the question whether the District Judge sitting in appeal had jurisdiction to decide confiscation of the vehicle, without the owner of the vehicle on the party array, with due respect, we regret, we are not in a position to agree with the reasoning of the learned Judge. We are of the opinion that the failure on the part of the appellant to implead the registered owner of the vehicle, as a party to the appeal, would not by itself oust the jurisdiction of the District Judge to entertain and decide the appeal filed under Section 61D of the Kerala Forest Act, 1961, Act 4 of 1962 (the Act).

3. The said section provides thus :

'61D. Appeal.-

(1) Any person aggrieved by any order passed under Section 61A or Section 61C may, within thirty days from the date of communication to him of such order, appeal to the District Judge having jurisdiction over the area in which the property to which the order relates has been seized and the District Judge shall, after giving an opportunity to the appellant to be heard, pass such order as he may think fit confirming, modifying or annulling the order appealed against.'

(2) An order of the District Judge under Sub-section (1) shall be final.'

The Section confers a right of appeal on any person aggrieved by any order passed under Section 61A, and Ext. P1 order passed by the 3rd respondent, Divisional Forest Officer, being an order passed under Section 61A of the Act, it could not be said that apart from the Authorised Officer who passed that order, any other person would be a necessary party to the appeal. We have not been shown any provision either in the Act or in the Rules which enjoins the impleading of all the parties to the proceedings before the Authorised Officer in the appeal filed under Section 61D of the Act. Assuming for the sake of the argument that besides the Authorised Officer who passed the impugned order, any person who was a party to the proceedings before the Authorised Officer, was a necessary or a proper party, the non-joinder of such party, in our view, would not oust the jurisdiction of the District Judge to entertain and dispose of the appeal.

4. So far as the second question is concerned, it is wellsettled by the decisions of the Supreme Court and of this Court that the confiscation of the vehicle would be illegal and unsustainable, if the value of the contraband alleged to have been carried in the vehicle is negligible, compared to the value of the vehicle. In this case, on the facts, the District Judge has recorded a finding that the value of the vehicle seized was Rs. 80,000/-whereas the forest produce carried in the vehicle was Rs. 200/-.

5. The District Judge has also found that the case of the registered owner of the van the hirer and the driver that each of them had taken all reasonable and necessary precautions against the use of the van for committing the forest offence had been accepted by the Authorised Officer himself; and the use of the vehicle for carrying the forest produce was when the appellant herein and his driver were away, without their knowledge and connivance. This alone is sufficient for setting aside Ext. P1 proceedings of confiscation passed by the Divisional Forest Officer, the authorised officer, confirmed by the Conservator of Forests, in view of the provisions contained in Sub-section (2) of Section 61B of the Act.

6. The result, therefore, is that we allow the appeal, set aside the judgment under appeal and restore Ext. P2 order passed by the 2nd respondent, the District Judge. There would, however, be no order as to costs.

7. Immediately after the judgment was pronounced the Advocate-General appearing for the respondents made an oral request to grant leave to appeal to the Supreme Court. We do not find any substantial question of general importance which, in our opinion, has to bedecided by the Supreme Court, involved in this case; hence leave declined.


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