Kerala High Court
State Of Kerala vs V.P.Aboobacker on 22 January, 2025
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RFA No.389 of 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 22ND DAY OF JANUARY 2025 / 2ND MAGHA, 1946
RFA NO. 389 OF 2003
AGAINST THE ORDER/JUDGMENT DATED 11.04.2003 IN OS NO.44
OF 1992 OF ASSISTANT SESSIONS COURT/SUB COURT/COMMERCIAL
COURT, MANJERI.
APPELLANTS/DEFENDANTS IN THE O.S
1 STATE OF KERALA
REPRESENTED BY THE DISTRICT COLLECTOR,MALAPPURAM
2 DIVSIONAL FOREST OFFICER (NORTH)NILAMBUR
3 FOREST RANGE OFFICER
EDAVANNA RANGE,NILAMBUR
BY ADV GOVERNMENT PLEADER
SPL.GP.NAGARAJ NARAYAN
RESPONDENT/PLAINTIFF IN THE O.S
V.P.ABOOBACKER
S/O MUHAMMED ALIAS CHERIYAPPU HAJI OWNER OF V.P.SAW
MILL,KUNDUTHODU,P.O, ERANHIKODE,EDAVANNA
AMSOM,ERANHIKODE DESOM IN ERNAD TALUK
BY ADV SRI.K.M.SATHYANATHA MENON
GP T S JIBU
THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION
ON 22.01.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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RFA No.389 of 2003
2
CR
JUDGMENT
Dated this the 22nd day of January,2025
This appeal is at the instance of the defendants in
O.S.No.44/1992 on the files of the Sub Court, Manjeri.
The defendants are State of Kerala represented by the
District Collector, Malappuram, the Divisional Forest
Officer, (North) Nilambur and the Forest Range Officer,
Edavanna Range, Nilambur.
2. The facts of the case are as under:
The plaintiff filed the present suit for mandatory
injunction seeking return of the machineries seized by the
third defendant, Forest Range Officer, on the allegation
that those were items involved in a crime in
O.R.No.90/1989 and for the damages arising out of the
suit. According to the plaintiff, Rs.700/- per month for 29
months towards rent was lost on account of seizure of the
machineries and Rs.30,000/- loss was incurred towards
deterioration of the value of the seized machineries.
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Accordingly, the plaintiff claimed the said amount along
with interest at the rate of 12% per annum. The plaintiff's
case is that those machineries were illegally seized by the
third defendant and later, those machineries were
confiscated illegally. Challenging confiscation, the plaintiff
filed C.M.A.Nos.37/1992 and 38/1992 and the same were
allowed and accordingly, confiscation proceedings were
set aside on the finding that the same were illegal.
According to the plaintiff, due to illegal seizure and
confiscation of the machineries, the plaintiff lost rent for a
period of twenty nine months and also sustained damages
on account of the deterioration of the machineries which
were seized and confiscated.
3. Defendants entered appearance and filed
written statement and the trial court extracted the
contentions in the written statement in paragraph No.3 of
the judgment as under:
3."Defendants filed written statement raising
the following contentions: The third defendant
and his staff while conducting night patrolling
duty on 12.09.1989 got a secret information that
the timber cut and removed from the government
forest were being illegally converted to
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pieces for transportation in the plaintiff's saw-
mill and the third defendant and his staff went
to the saw-mill and found that a log of Irul
timber was converted into smaller sizes for
facilitating easy transportation. Further search
conducted by them reveal that seven more than
logs of timber was found there. The persons
who running the saw-mill were also present
there and further questioning he came to know
that eight pieces of Irul timber traced out by the
forest officials were not covered by any valid
documents and they were converted to smaller
pieces for transportation and using tools
installed in the saw-mill at the dead hours of
the night and since the officials believed that
there is prima facie offence committed in
respect of the timber 8 pieces of Irul timber
together with the machineries were seized
under section 52(1) of the Kerala Forest Act and
they produced before the authorised officer.
Since a case under section 61(a) of the Act was
registered and investigation was conducted and
the processes has to be completed an order was
issued for confiscating the timber along with
machineries. The allegation that the action of
the third defendant is illegal and unwarranted is
not correct. The officials has taken only legal
actions in accordance with the provisions of the
Kerala Forest Act. The defendants has not
prolonged the passing of the order of
confiscation illegally. The timber and tools were
confiscated to the Government on 20.05.1992
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and the plaintiff is not entitled to get any relief
as claimed in the plaint. So the suit is liable to
be dismissed."
4. The trial court recorded evidence after
framing necessary issues. The plaintiff got examined as
PW1 and Exts.A1 to A8 were marked. No oral evidence
was tendered by the defendants. Finally, the trial court
found that the plaintiff is entitled to Rs.20,300/- towards
rent suffered for a period of twenty nine months at the
rate of Rs.700/- per month and also found that the
plaintiff is entitled to get the value of machineries to the
tune of Rs.30,000/- and also interest on the rent at the
rate of 6% coming to the tune of Rs.1,323/-. Thus,
decree was granted as under;
"In the result, suit is decreed in part
with costs. The defendants are directed to
pay Rs.51,623/- to the plaintiff with interest
at the rate of 6% per annum on the principal
amount of Rs.50,300/- from the date of suit
till realization. The plaintiff is entitled to get
proportionate costs of the suit from the
defendants. "
5. Now the defendants assail the verdict of
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the trial court and the main contention raised is that the
court below found that there was no evidence in the
circumstances to see that defendants 2 and 3 were not
acting in good faith in pursuance of the provision of the
Kerala Forest Act, 1961 (for short, 'the Act, 1961'
hereinafter). The further contention is that, no suit shall
lie against any public servant for any act done or omitted
or ordered to be done, in good faith, in pursuance of the
the Act, 1961, as contemplated under Section 74 of the
Act, 1961. According to the defendants, there was already
a judgment by the District Court, Manjeri to return the
articles. Therefore, the suit is barred by res judicata. On
the above grounds, the learned Special Government
Pleader would submit that the trial court went wrong in
granting decree, and the suit is liable to be dismissed by
allowing this appeal by giving protection under Section 74
of the Act, 1961 to the bona fide acts of defendants 2 and
3.
6. Whereas, it is submitted by the learned
counsel for the plaintiff that since the seizure and
confiscation of the machineries were found to be illegal by
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the District Court, Manjeri, the defendants are bound to
compensate the loss and the same alone at the bare
minimum was allowed by the trial court as per the verdict
impugned. Therefore, no interference in the trial court
judgment is necessary.
7. In the instant case, the plaintiff is the
owner of P.V. Saw Mill at Eranhikode and the saw mill with
its machineries was rented out by the plaintiff to one
Kannangadan Muhammed for a period of two years
initially as per lease deed dated 04.03.1988. Ext.A1 is the
rent deed so executed on 12.09.1989. While so, in
connection with O.R.No.90/1989, the 3rd defendant seized
the timber and machineries in the saw mill, suspecting
involvement of those items in an offence under the Act,
1961. The Mahazar regarding seizure was prepared and
the same is marked as Ext. A2. Ext. A4 is the show cause
notice issued by 2nd defendant to the plaintiff. Ext.A5 is
the reply sent by the plaintiff to the second defendant
dated 02.07.1991. Ext. A6 is the copy of section 80
C.P.C. notice sent by the counsel for plaintiff to the
defendants with postal receipts and acknowledgment
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dated 01.11.1991. Ext.A7 is the reply sent by the first
defendant to the counsel for plaintiff to Ext.A6 notice.
Ext.A8 is the certified copy of judgment in
C.M.A.Nos.37/92 and 38/92 by the District Court, Manjeri
regarding the appeal filed against the order of
confiscation.
8. As per Ext.A8, the confiscation of the
articles by the 3rd defendant was set aside. The specific
case of the plaintiff is that, the seizure and confiscation
are illegal and therefore, the suit amount claimed is
entitled by the plaintiff. The contention raised by the
defendants is that the timber and machineries were seized
based on a secret information received on 12.9.1989 while
the 3rd defendant and his staff while doing patrol duty,
who found that timber cut and removed from the forest
land was illegally converted into pieces for transport at the
saw mill of the plaintiff. Accordingly, on finding
involvement of those items and the machineries, those
items were seized and the said action is a bona fide one
protected under Section 74 of the Act, 1961.
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9. The trial court relied on the rent
agreement to hold that the agreed rent was Rs.700/- per
month. Accordingly, considering the loss of rent for a
period of twenty nine months because of closure of the
saw mill in consequence of the seizure of the machineries,
Rs.20,300/- was granted towards loss of rent. Relying on
Ext.A2 Mahazar, where the value of the machineries was
depicted as Rs.35,000/- as against claim of Rs.30,000/-
claimed by the plaintiff, the trial court granted
Rs.30,000/-. The trial court also granted interest on the
rent at the rate of 6% and the amount so arrived at is
Rs.1,323/-.
10. Now, the crucial question that falls for
consideration are;
1) Whether the trial court is justified in holding that
the plaintiff is entitled for the suit amount for which
decree was granted ignoring the protection under Section
74 of the Act, 1961?
2) What is the impact of Section 74 of the Act, 1961
and what are the instances where an action of the public
servant/forest official is to be treated as an act done or
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omitted to be done in good faith for the purpose of
Section 74 of the Act, 1961?
3) Whether the indemnity provided under Section 74
of the Act, 1961 for the act done in "good faith" by the
public servant/forest officer is absolute?
4) Whether the decree and judgment impugned would
require interference?
5) Reliefs and Costs.
11. Section 74 of the Act, 1961 provides that no suit
or criminal prosecution or other proceeding shall lie
against any public servant for any act done, or omitted or
ordered to be done, in good faith, in pursuance of this act.
Relying on Section 74, it is pointed out by the learned
Special Government Pleader that the seizure of the
machineries and timber suspecting its involvement in an
offence under the Act, 1961 is an act done in good faith
by the defendants 2 and 3 and therefore, the said action
is protected from challenge and no suit would lie against
the same. Therefore, the present suit is not maintainable.
12. Adverting to this contention, it is noticeable that
Section 74 provides indemnity for acts done in good faith
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by the public servant/forest officials, but acts done not in
good faith will not receive the protection under this
section. Though the word "good faith" is not defined in the
Indian Penal Code,1860, Section 52 of the Indian Penal
Code,1860, gives only a negative definition by saying that
'nothing is said to be done or believed in good faith which
is done or believed without due care and attention' which
implies genuine effort to reach the truth and not ready
acceptance of ill-natured belief. The expression "good
faith" in criminal jurisprudence has a definite connotation
and its import is totally different from saying that the
person concerned has honestly believed the truth of what
is said as observed by the Apex Court in the decision
reported in AIR 2001 SC 2374, In re S K Sundaram's
case. In civil proceedings, "good faith" refers to the legal
principle that parties involved in a law suit should act
honestly, fairly and without an intention to deceive or take
unfair advantage of the other party, essentially, meaning
they should conduct themselves with sincerity and without
malicious intention. Thus, either in civil proceedings or in
criminal proceedings, careless and negligent act as well as
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deliberate invocation of official power to wreck vengeance
would not come under the term "good faith". In such
cases, the indemnity to a public servant/forest officer
provided under Section 74 of the Act, 1961, would not be
available. Now, the contention raised by the defendants is
that the persons who run the saw mill owned by the
plaintiff were present at the saw mill during dead hours of
the night in engaging conversion of 'irul' timber traced out
by the forest officials and it is at this juncture, the officials
prima facie believed the same as timber illegally cut and
removed from the forest and accordingly, crime registered
under Section 61A of the Act, 1961 and the machineries
were seized under Section 52(1) of the Act, 1961. It is
true that 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. Section 53 of the Act,
1961, deals with power to release property seized under
Section 52, on execution of bond by the owner thereof, for
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the production of the same so released, if and when
required before the Magistrate having jurisdiction to try
the offence, on account of which the seizure has been
made. In the instant case, the suit was filed on
15.2.1992. Ext.A8 is the certified copy of judgment in
C.M.A.Nos.37/1992 and 38/1992, dated 30.3.2002,
whereby the District Judge, Manjeri set aside the order of
confiscation. It is true that before that, the present suit
was filed seeking return of the machineries. Even though
it is argued by the learned Senior Government Pleader
that as per Ext.A8 also the machineries were ordered to
be released, the suit filed thereafter is barred by res
judicata, it is discernible from the decree that the suit was
filed on 15.2.1992 and the confiscation order was passed
on 30.3.2002. Thus, the suit is not barred by res judicata
or in any other manner. The case of the plaintiff is that on
account of seizure and confiscation of the machineries of
the saw mill which was given on rent as per Ext.A1 rent
deed to Kannangadan Muhammad, the rent at the rate of
Rs.700/- per month for a period of 29 months was lost
due to closure of the mill in view of the seizure. He also
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would contend that the value of machineries as per Ext.A2
mahazar is stated as Rs.35,000/-.
13. In the instant case, merely suspecting the
involvement of the machineries of the plaintiff in an
offence under the Act, 1961, the forest officials seized the
same and subjected the same to confiscation. Later, a
competent court set aside the confiscation, finding the
same as illegal. When an order of confiscation is set
aside, the same presupposes the fact that the seizure and
confiscation are illegal. It is true that in cases where the
act done by the public servant/forest official is found to be
done in good faith, Section 74 of the Act, 1961, would
grant indemnity to the public servant/forest official
against civil proceedings/criminal proceedings. But as
already pointed out in such cases, whether the act was
done or omitted to be done or ordered to be done in "good
faith" is to be addressed from the circumstances of each
case and no hard and fast rule to be declared. To put it
otherwise, the protection provided under Section 74 of the
Act, 1961, is not absolute though the same protects a
forest officer from legal proceedings if he acted in good
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faith while performing the official duties under the Act,
1961. Therefore, a court can examine the actions if there
is evidence of malicious intent or deliberate negligence
and carelessness. That is to say, when it could be found
that the forest officer acted in good faith on genuine
belief, the said act alone would be protected, and Section
74, and is not a shield for the forest officer/public servant
to do anything without rational application of his cognitive
faculty on the premise of protection given under Section
74 of the Act, 1961. Therefore, if forest officers who are
accountable for their actions, do certain acts in blatant
disregard to the ordinary care and caution, and with
wrong or malicious intent, the said actions would not get
indemnity or protection under Section 74 of the Act, 1961.
14. In the instant case, the seizure and confiscation
of the timber and machineries were challenged before the
District Court and the same were set aside finding
illegality. If so, in the case at hand, the actions of the
defendants 2 and 3 are illegal acts for which protection
under Section 74 of the Act, 1961 cannot be extended.
Viewing from another angle, if the protection under
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Section 74 of the Act, 1961, is absolute any mischief and
shabby actions of the forest officer which would result in
unliquidated/liquidated damages to the person affected
could not be addressed. Therefore, blanket protection
under the caption "good faith" cannot be granted to the
forest officers. If such a procedure is permitted, the forest
officers would get an unbridled freedom to seize any
articles under the guise of involvement in an offence
under the Forest Act and in such cases, if at a later stage,
a competent court finds the procedure and seizure to be
illegal, the persons affected by such acts done by the
forest officers would be in peril and there will be no
remedy for them to compensate their losses. In the
instant case, the seizure was at the instance of the 3rd
defendant who suspected involvement of the machineries
in O.R.No.90/89, but as per Ext.A8, the District Judge
found in the negative and set aside the seizure as well as
the confiscation. In such a case, by merely giving
protection under the caption of "good faith", a person who
suffered loss and filed a suit to get the articles or claim
damages thereof, could not be denied. Thus, in the instant
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case, the available evidence would suggest that the
plaintiff sustained Rs.20,300/- towards rent for twenty
nine months and also Rs.30,000/- as claimed towards the
value of the machineries. Therefore, the trial court rightly
granted decree, bifurcating the amount as discussed in
the order.
15. In view of the matter, the decree and
judgment of the trial court do not require any interference
and the same are to be confirmed. Considering the
nature of contentions, the plaintiff is entitled to get
proportionate cost of the proceedings throughout.
In the result, the appeal fails and is dismissed
with proportionate cost of the plaintiff to be realised from
the defendants.
Registry is directed to forward a copy of this
judgment to the trial court, forthwith.
Sd/-
A.BADHARUDEEN
JUDGE
Cak
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PETITIONER ANNEXURES
ANNEXURE A2(A) CERTIFIED COPY OF THE CONFISCATION
PROCEEDINGS AS ORDER T.11129/1989
DATED.20.05.1991ISSUED BY THE DIVISIONAL
FOREST OFFICER, NILAMBUR,NORTH.
