Point of Law : In absence of due authentication and promulgation of the guidelines, the contents thereof cannot be treated as an order of the Government and would really represent an expression of opinion.

ORDER :

1. Crl.M.C.No.1838/2021 has been filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C’ for short) by the petitioner, who is the 3rd accused in O.R.No.2/2020 of Marayoor Forest Range, for quashment of Annexure 1, viz., O.R.No.2/2020, of Marayoor Forest Range.

2. Crl.M.C.No.2697/2021 has been filed under Section 482 of Cr.P.C by the petitioner, who is registered owner of a goods carriage, bearing Registration No.KL-62-A-1140, for setting aside Annexure A2 seizure report in the above crime and for the release of the above vehicle.

3. Heard the learned counsel for the petitioners and the learned Senior Government Pleader appearing for the Forest Department.

4. The parties and the documents in these cases shall be referred to in this order as to their description in Crl.M.C.No.1838 of 2021.

5. In this matter, O.R.2/2020 of Marayoor Forest Range has been registered alleging commission of offence punishable under Section 52 of the Kerala Forest Act and it is alleged therein that on 02.10.2021, the Forest Officer intercepted and seized ‘vembu trees’ collected from private property, when the vehicle carrying the above contraband was stationed at Karimutti near Marayoor. The allegations in the report run on the premise that the above ‘vembu trees’ situated in S.R.No.51, reserved forest were cut and removed against the prohibitions contained in Section 52 of the Kerala Forest Act.

6. The learned counsel for the petitioners highlighted Annexure 8 circular dated 11.03.2020 issued by the Revenue Department to justify cut and removal of ‘vembu trees’ from property having an extent of 0.60.70 (1 ½ acre), situated in old Survey No.238/1 in block No.48 in Sub Division No.277 of Devikulam village. It is argued by the learned counsel for the petitioners that the above extent of land was assigned in favour of Chapli, S/o.Palani and Smt.Pappa, W/o.Chapli, House No.97, Karimutty Hill Pulaya Colony, Marayoor, as per Annexure 9 patta issued on 29.12.2001. Annexure-9(a) is the patta in favour of the above persons and similarly, Annexures-9(b) and 9(c) are also pattas issued respectively in favour of Meenakshi, D/o.Sundaram and Chadayan, S/o.Late Mari and others. Relying on Annexure-8 circular, the learned counsel for the petitioner argued that as per the circular, the Revenue Department clarified that as per G.O(P).No.60/2017/Rev. SRO No.621/17 the patta holders would have right to cut and remove trees except sandal wood which were grown by them. It is submitted by the learned counsel for the petitioners further that the above circular was issued to clarify the anomaly prevailed in this regard. The cardinal point argued by the learned counsel for the petitioners is that since as per Annexure-8 circular, cut and removal of ‘vembu trees’ from the property for which patta was issued, is within the sanction of law, no offence as alleged in the present crime would attract. Therefore, the occurrence report as well as recovery mahazar are liable to be quashed.

7. The learned Senior Government Pleader zealously argued that Annexure-8 has no legal sanctity since the same is not the law, enacted by the legislature. Further he submitted that Annexure-8 circular is against the statutory provisions and any circular issued by the Government or its Departments without the authority of the Governor, that too, against the statutory provisions, is bad in law and the same cannot supersede the statutory provisions. In this connection, the learned Senior Government Pleader placed various decisions of the Apex Court as well as this Court. He has pointed out the decision of the Apex Court reported in [(2014) 10 SCC 673], Gulf Goans Hotels Company Limited & anr. v. Union of India & Ors. to contend that in the absence of due authentication and promulgation of the guidelines, the contents thereof cannot be treated as an order of the Government and would really represent an expression of opinion. In law, the said guidelines and th