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1975 DIGILAW 322 (KER)

State of Kerala v. Kesavan Nanu

1975-12-09

P.J.AMMA

body1975
JUDGMENT P. Janaki Amma, J. 1. The respondents herein were prosecuted by the State for offence punishable under section 27 (2) (c) and (d) of the Kerala Forest Act alleging that they unauthorisedly trespassed into the forest area known as Ariencavu Reserve and attempted to remove logs of teak trees belonging to Government. Ext. P-3 is the copy of the notification issued under section 18 of the Travancore Regulation III of 1068 declaring the area as Reserve Forest and specifying its boundaries. Travancore Regulation II of 1068 was replaced by Travancore-Cochin Forest Act of 1951. After the Kerala State was formed, the Kerala Forest Act 4 of 1962 was passed which repealed the Travancore-Cochin Forest Act. Both section 19 of the Travancore-Cochin Forest Act and section 19 of the Kerala Forest Act provide for notifications declaring forests reserved. The above sections are in line with section 18 of the Travancore Forest Regulation II of 1068. It is common case that no fresh notifications have been issued under the two enactments. The trial court held that in the absence of a notification under section 19 of the Kerala Forest Act, the area does not become Reserve Forest for the purpose of that Act and no prosecution for trespass or removal of trees would lie. The court also observed that there was no proper evidence regarding the publication of Ext. P-3 notification. The accused were accordingly acquitted. 2. The short point for decision is whether Ext. P-3, copy of the notification can be acted upon. The trial court placed reliance on Pyli v. State of Kerala 1966 K.L.T. 102 and refused to take judicial notice of the notification declaring the limits of the Arienkavu Reserve. The decision, no doubt, deals with the mode of proof in respect of a notification issued under the Kerala Forest Act. But the trial court omitted to note that no copy of the notification had been produced in that case and, therefore, the decision has no application to the facts of the present case, On the other hand, the decision recognises that a notification issued under section 19 of the Kerala Forest Act is a public document within the meaning of section 74 of the Evidence Act. Section 78 of the Evidence Act prescribes the mode of proof in respect of public documents. Section 78 of the Evidence Act prescribes the mode of proof in respect of public documents. Acts, orders or notifications of the Central Government in any of its departments or of any State Government or any department of any State Govern­ment are to be proved by the records of the departments, certified by the heads of those departments respectively. Section 77 of the Evidence Act permits production of certified copies in proof of the contents of the public documents. Ext. P-3 has been certified by the Chief Conservator of Forests who is the head of the Forest Department as a true copy of the notification published on page 974 of the Travancore Government Gazette dated 20th August, 1901. Therefore, there is no doubt that Arienkavu Reserve was a Reserved Forest under section 18 of the Travancore Forest Regulation II of 1068. 3. The further question is whether in the absence of notifications under section 19 of the Travancore-Cochin Forest Act and the Kerala Forest Act, the area can be considered to be Reserved Forests for the purpose of those Statutes. 3. The further question is whether in the absence of notifications under section 19 of the Travancore-Cochin Forest Act and the Kerala Forest Act, the area can be considered to be Reserved Forests for the purpose of those Statutes. The answer to the question is provided in section 101 (3) of the Travancore-Cochin Act which states that orders issued under the Travancore Regulation shall be deemed to have been issued under that Act and section 85 (3) of the Kerala Forest Act which reads: “All rules prescribed, appointments made, powers conferred and orders issued under the enactments hereby repealed shall be deemed to have been respectively prescribed, made, conferred and issued here under till new rules and enactments are made under the various sections of this Act.� Reference may also be made to section 23 of the Interpre­tation and General Clauses Act which is as follows: “Where any Act is repealed or re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or bye-law, made or issued under the repealed Act shall, so far as it is not inconsistent with provisions re-enacted, continue in force, and be deemed to have been made or issued under the provisions so re-enacted unless and until it is superseded by any appointment, notification, order scheme, rule, form or bye-law made or issued under the provisions so re-enacted� The trial court placed reliance on the order in C.R.P. 231 of 1972 where a doubt was expressed by a learned judge of this court as to whether a notification issued under the Travancore Regulation II of 1068 can be deemed to be notification under section 19 of the Kerala Forest Act. I need only refer in this connection to the observations of the Supreme Court in B. P. Andre v. Superintendent Central Jail, Tihar A.I.R.1975 S.C.164: “It is now well settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion. To quote the words of Lord Asquith in East End Dwellings Co. To quote the words of Lord Asquith in East End Dwellings Co. Ltd, v. Finsbury Borough Council [1952 AC 109 at p. 132:] “If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.� Following the reasoning, a notification or order issued under the Travancore Regulation II of 1068 should be treated as a notification or order under the Travancore-Cochin Forest Act by virtue of section 101 (3) of the latter Act. If that be so, section 85 (3) of the Kerala Forest Act comes into play and it should be deemed to be a notification or order under the Kerala Act. Therefore, an area notified as Reserved Forest under the Travancore Regulation II of 1068 will be deemed to be a Reserved Forest under the Kerala Forest Act until another notification is issued directing that it shall cease to be reserved. No notification the date of Ext. P-3 is proved to have been issued in respect of the Ariencavu Forest. 4. It follows that the grounds on which the trial court acquitted the accused are not sustainable. The court has not considered the merits of the case and has not found whether there has been trespass into or removal of trees from the Reserved Forests by the accused. The case has to be sent back to the trial court for decision on the merits The appeal is accordingly allowed. The order of acquittal is set aside and the case is remanded to the trial court for disposal, according to law.