Suresh Mathew vs State Of Kerala
2024 Latest Caselaw 4404 Ker

Kerala High Court

Suresh Mathew vs State Of Kerala on 6 February, 2024

Author: Devan Ramachandran

Bench: Devan Ramachandran

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
                       WP(C) NO. 32641 OF 2023


PETITIONER:

          SURESH MATHEW, AGED 63 YEARS, S/O. K.M. MATHEW,
          NEDUMCHIRAYIL HOUSE, S.H. MOUNT P.O.,
          KOTTAYAM., PIN - 686006

          BY ADV M.C.JOHN


RESPONDENTS:

    1     STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY,
          FOREST & WILD LIFE DEPARTMENT, SECRETARIAT,
          THIRUVANANTHAPURAM, PIN - 695001

    2     THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS (P&D),
          FOREST HEADQUARTERS, VAZHUTHACAUD, TRIVANDRUM,
          PIN - 695014

    3     THE CHIEF CONSERVATOR OF FORESTS,
          NORTHERN CIRCLE, KANNUR, PIN - 678001

    4     THE DIVISIONAL FOREST OFFICER, NORTH WAYANAD
          DIVISION, MANANTHAVADY, WAYANAD, PIN - 678645

    5     THE RANGE FOREST OFFICER, BEGUR RANGE OFFICE,
          BEGUR, MANANTHAVADY, WAYANAD, PIN - 678645


          SRI. T.P.SAJAN, GP


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 32641/23
                                     2

                              JUDGMENT

The petitioner impugns Ext.P5 proceedings issued to him by

the 4th respondent - Divisional Forest Officer (DFO), asserting that

the facts stated therein are factually wrong and incorrect.

2. Sri.M.C.John - learned counsel for the petitioner,

explained that his client had entered into a contract with the 4 th

respondent, for cutting and removing specified number of trees and

that though he has completed the same as per the stipulations

therein, he is now sought to be mulcted with liability, which is

indicative from the fact that Ext.P5 has been issued to him. He

argues that the DFO could not have issued Ext.P5, without verifying

whether his client has completed the work; and thus prays that the

same be set aside.

3. Sri.T.P.Sajan - learned Special Government Pleader for

Forest, in response, submitted that the contract awarded to the

petitioner was to cut and remove trees, which were marked and

identified specifically. He submitted that, at the time of awarding

the contract, the petitioner had been convinced of the trees to be

removed; but that he still refused to do so, which constrained the

DFO to issue Ext.P5, notifying him that at least 642 trees are still

remaining to be cut and removed. He submitted that, therefore, the

petitioner ought to have replied to Ext.P5, if he had a case contrary

to the assertions therein, rather than to have approached this Court.

He argued that the conduct of the petitioner discloses his intention

to shy away from the contractual obligations; and that, if he has

evidence to show that he has cut and removed all the trees as per

it, then no further action will be taken by the DFO.

4. Before I proceed forward, I must record that, noticing the

afore rival submissions of the parties, I had passed an interim order

on 21.11.2023 with their consent as under:

Taking note of the diverse factual statements in the pleadings, I am certain that the facts involved be required to be properly identified and ascertained.

2. For this, I am of the view that the petitioner must be allowed a Joint Inspection of the trees marked by the Forest Officials.

3. Sri.T.P.Sajan - learned Special Government Pleader for the Department of Forest, submitted that his client has absolutely no objection in the marked trees being removed by the petitioner and that if he wants, it can be further marked, above subject to his expenses.

4. Sri.M.C.John - learned counsel for the petitioner, on the contrary, submitted that the trees are marked and it can be shown to him, then his client can complete the contract as per the original stipulations.

In the afore circumstances, I direct the 5 th respondent - Forest

Range Officer, to accompany the petitioner and identify the marked trees enumerating them specifically in a report thereafter to be filed before this Court.

Post after three weeks.

5. However, the further reports filed on record by the

parties would establish that the exercise ordered in the afore interim

order has created more controversy because, on one side, the Forest

Department says that the petitioner did not cooperate with the

inspection; while, on the other hand, the petitioner asserts to the

contrary. Obviously, therefore, the actions that were taken pursuant

to the afore interim order cannot now influence the judgment of this

Court; nor should it trammel the remedies available to the parties.

6. Keeping the afore in mind, when I examine Ext.P5, it is

clear that the DFO has only made an allegation therein that the

petitioner has not yet cut and removed 642 trees, contrary to what

was entrusted to him under the contract. This is a pure question of

fact, which the petitioner can always answer, on the strength of

available evidence, if he has a case that he has cut and removed all

the trees as stipulated. The question whether such trees were all cut

and removed is a matter to be evaluated, inter alia, based on the

'Passes' issued and permissions granted during the time of contract;

and certainly, if the petitioner has evidence to establish that he has

done so, then he must be given an opportunity of impelling it

before the DFO appropriately.

7. In other words, if the DFO is to be convinced that the

petitioner has, in fact, cut and removed all the marked and

identified trees as per the contract, then I see no reason why any

action should be proceeded against him pursuant to Ext.P5.

In the afore circumstances, I vacate the earlier interim orders

issued by this Court in this case and dispose of this Writ Petition in

the following manner:

a) The petitioner is at liberty to answer Ext.P5 appositely,

supported by all documents and evidence, to establish that he has

cut and removed all trees, as was required under the contract in

question. This shall be done by him as expeditiously as is possible,

but not later than one month from the date of receipt of a copy of

this judgment.

b) On the afore explanation being received by the 4 th

respondent - DFO, the said Authority will hear the petitioner and

take a final decision as to whether any further action is required to

be taken against him; which shall then culminate in an appropriate

order, as expeditiously as is possible, thereafter.

c) Needless to say, in the event the petitioner invokes the

remedy as reserved to him in direction (a) above, then until such

time as the final orders are issued by the DFO, all coercive action

against him will stand deferred, even if it has been proposed or

initiated as of now.

Sd/-

RR                                        DEVAN RAMACHANDRAN
                                                  JUDGE



                 APPENDIX OF WP(C) 32641/2023

PETITIONER EXHIBITS
Exhibit P1           A TRUE COPY OF THE ORDER DATED 25.07.2023

IN I.A. NO.1/23 IN W.P. (C) NO. 7669/2023 OF THIS HON'BLE COURT Exhibit P2 A TRUE COPY OF THE ORDER NO. J 939/20 DATED 02,08.2023 ISSUED BY THE 4TH RESPONDENT Exhibit P3 TRUE COPY OF THE ORDER NO. J- 939/20 DATED 17.08.2023 PASSED BY THE 4TH RESPONDENT Exhibit P4 A TRUE COPY OF THE E-MAIL SENT TO RESPONDENT NO.4 ON 28.08.2023 Exhibit P5 A TRUE COPY OF THE LETTER NO. J. 937/20 DATED 05.09.2023 ISSUED BY THE 4TH RESPONDENT TO PETITIONER RESPONDENT ANNEXURES Annexure R5(a) True copy of the mahazar dated 6.8.2021 in 1981 Bit I. Annexure R5(b) True copy of the mahazar dated 18.1.2022 in 1981 Bit II.

Annexure R5(f) True copy of the agreement No 3/2023-24 dated 13.4.2023 Annexure R5(c) True copy of the agreement No 16/2022-23 dated 13.12.2022 Annexure R5(d) True copy of the agreement No 17/2022-23 dated 13.12.2022 Annexure R5(e) True copy of the agreement No 2/2023-24 dated 13.4.2023 PETITIONER EXHIBITS EXHIBIT P6 A true copy of the transit pass No. 6/23- 24 dated 01.05.2023 together with the list over leaf EXHIBIT P7 A true copy of the transit pass No. 31/23-24 dated 06.05.2023 with the list over leaf EXHIBIT P8 A true copy of the transit pass No.37/23- 24 dated 15.05.2023 with the list overleaf Exhibit P9 A TRUE COPY OF THE LETTER DATED 24.11.2023 ISSUED TO THE 5TH RESPONDENT Exhibit P10 A TRUE COPY OF THE LETTER NO. B2-186/2020 DATED 30.11.2023 ISSUED BY THE 5TH RESPONDENT

ANNEXURE- I True photos of two marked trees from Bit No.1dated 11.12.2023 RESPONDENT EXHIBITS Exhibit R5(a) True copy of the last page of marking register dated 11/12/2023 Exhibit R5(b1) True copy of the mahazar dated 6.8.2021 Exhibit R5(b2) True copy of the mahazar dated 23.8.2021