Indemnity under Section 74 of the Kerala Forest Act is not absolute; actions taken in good faith must be genuinely believed lawful, and negligence or malicious intent voids protection.

JUDGMENT

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.

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 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 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 defen