STATE OF KERALA Vs. PARVATHY

JUDGEMENT

(1.) Appeal is filed by the State against the judgment of the learned single Judge holding that the officer who issued permit for cutting trees under Section 6(3) of the Kerala Promotion of Tree Gowth in Non Forest Areas Act, 2005, hereinafter referred to as the "Act", has no inherent authority to suspend or cancel the permit issued on violation of permit conditions. We have heard Special Government Pleader appearing for forest department, the Appellants herein and the counsel for the Respondents.

(2.) The facts are that Respondents 1 to 3, the Petitioners in Writ Petition are "small holders" of non-forest lands within the meaning of the definition contained in Section 2(d)(b) of the Act. They were granted Exts.P8 to P10 permits for cutting a total of 31 numbers and 14 numbers of notified trees. Admittedly, the trees permitted to be cut under the permits issued could be cut without getting permit from the forest department under Section 6(3) of the Act. However, the forest department, on physical verification, found that the first Respondent who was allowed to cut 14 trees under the permit (11 rosewood trees and 3 Chadachi trees) had cut 79 trees, ie., 65 trees over and above the permitted number of trees. Similarly, as against the permit to cut three trees (two rosewood and one chadachi) granted to the second Respondent, he actually cut 10 trees, the violation being 7. So far as the third Respondent is concerned, he illegally cut 52 trees over the permitted because, physical verification proved that, as against the total of 14 trees permitted to be cut, he cut as many as 62, leaving the permitted trees yet to be cut. Violations are prosecutable offences for which Respondents 1 to 3 are facing trial before the Magistrate court on a complaint filed under Section 7 of the Act. Appellants issued Exts.P9 to P13 suspending the permits issued to the Respondents. Such permits were chal lenged in this Court on the ground that the officer issuing the permit has no statutory authority, express or inherent, to suspend or recall the permit. The learned single Judge accepted this contention and vacated the orders issued by the authorised officer suspending the permit against which this Writ Appeal is filed.

(3.) After hearing counsel from both sides and after going through the judgment of the learned single Judge, we are afraid the judgment of the learned single Judge restricting the authority of the officer issuing the permits will lead to frustration of the object of the statute, that is, promotion of tree growth. Respondents 1 to 3 have no case that they do not require any permission from the department to cut trees and they are facing prosecution proceedings initiated before the Magistrate court. As already noticed above, what we find is, as against the permits granted to the three Respondents to cut 31 trees, they had in fact cut 152 trees, which shows that violations are multiples of the permits granted. In fact the allegations of the Appellants is that, in the case of Respondents 1 to 3, they did not cut any of the permitted trees and all the cuttings were illegal felling of trees. Therefore, what is seen is that, under the cover of permits, Respondents 1 to 3 were engaged in cutting and removal of other trees. In a case where under the cover of permits to cut 31 trees, Respondents 1 to 3 felled 152 trees, we do not know how without suspending the permits granted, the officer of the department can make verification and take inventory of the trees cut for taking action under Section 7. Therefore, in order to take action under Section 7 itself, the officer has to stop the cuttings under permits issued and make physical verification as to the violations and then take appropriate action. We do not think there is any requirement of specific authority in the statute conferring specific powers on the officers for suspension or revocation of permits for taking action under Section 7. In our view, felling of trees without any permit or cutting trees other than permitted under the cover of permits obtained for cutting of some other trees is a forbidden act which could be stopped by the authorised official in exercise of his authority as an Enforcement Officer under the Act. The Schedule to the Act specifically covers 28 varieties of trees which could be cut and removed without any permission. So, after obtaining permits to cut other trees, the permit holders can cut the trees covered by the Schedule for which no permit is required. In such situation the permits issued cannot be suspended or revoked as there is no violation of the permits issued. However, if the permit is used as a cover to cut unpermitted trees for which also permission is required, then we feel, the authority issued the permit has the inherent authority to suspend the permit and if justified, can revoke the permit because, the act amounts to misuse of permit issued. We, therefore, feel the finding of the learned single Judge that the officer issuing permit has no inherent power to prevent misuse or abuse of permit in circumstances justifying it cannot be upheld. A permit is given to utilize it within a time frame and it is always open to the authority issuing the permit to ensure that permit is properly utilized and if there is attempt to misuse it or violate the conditions of it, the officer has the inherent power to suspend it or revoke it, if violation justifies it. Therefore, in our view, the permit issuing authority has inherent powers under the statute to suspend, modify or revoke the permit under justifying circumstances which of course cannot be stated exhaustively. However, this is a fit case where violation is so serious that justifies suspension of permits and the holding of enquiry which led to prosecution. In this case, we have released timber through interim orders directing the Respondents to deposit a total amount of 75,000/- before the Magistrate court to utilize towards fine, if any levied for the violations alleged under Section 7 of the Act. On this condition, the cut trees are allowed to be removed. We, therefore, allow the Writ Appeal declaring the above position of law and by modifying the judgment of the learned single Judge to that extent.