Circulars Issued By Centre, State Merely Represent Their Understanding Of Statutory Provisions, Not Binding Upon Court: Kerala High Court

The Kerala High Court on Thursday observed that circulars or clarifications issued by the Central Government represent merely their understanding of the statutory provision and are not binding upon the Court as it is for the Court to declare what a particular provision of the statute says. 

Justice A. Badharudeen while passing the order observed that a circular which is contrary to the statutory provisions has no existence in law. 

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...So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the court to declare what the particular provision of statute says and it is not for the executive. 

Brief Factual Matrix 

A Case was registered by the Marayoor Forest Range alleging the commission of an offence punishable under Section 52 of the Kerala Forest Act. It was alleged that the Forest Officer intercepted and seized `vembu trees' collected from private property when the vehicle carrying the contraband was stationed near Marayoor. Section 52 of the Act prohibits the cutting and removing of 'vembu trees' from the reserved forest.

One of the two Criminal Miscellaneous Cases heard together was filed by one of the accused persons in the case registered by the Marayoor Forest Range for quashing the case and the other was filed by the owner of the vehicle that was seized for carrying the contraband for setting aside the seizure report and for the release of the vehicle. 

Contentions Raised

The Counsel appearing for the Petitioner averred that a circular dated 11.03. 2020 was issued by the Revenue Department clarifying that the patta holders would have right to cut and remove trees except for sandalwood which was grown by them. Thus, the Counsel argued that as per the circular, cutting and removing of 'vembu trees' from the property for which the patta was issued is within the sanction of law, no offence as alleged in the crime would attract. 

Senior Government Pleader however argued that the circular issued by the Revenue Department has no legal sanctity since the same is not the law, enacted by the legislature. He further submitted that the circular is against the statutory provisions and any circulars issued by the Government or its department without the authority of the government, that too against the statutory provisions is bad in law and cannot supersede the statutory provisions. Senior Government Pleader relied on a number of  Apex Court decisions including Gulf Goans Hotels Company Limited & anr. v. Union of India & Ors., Uttaranchal v. Sunil Kumar Vaish and Jaipur Development Authority & Ors. v. Vijay Kumar Data & anr to substantiate his contention. 

It was also contended by the Senior Government Pleader that as per Section 3 of the Kerala Forest (Prohibition of Felling of Trees Standing on Land Temporarily or Permanently Assigned) Rules, 1995 all trees standing on lands temporarily or permanently assigned, the right of the Government over which has been expressly reserved in the deed of grant or order of assignment of such land, shall be absolute and that no person shall fell, lop, cut or maim or otherwise maltreat any tree which is the property of Government without prior sanction granted by the Divisional Forest Officer having jurisdiction over the area and any of the overt acts would attract offence punishable under Section 7 of the Rules.

Findings of the Court

The Court after considering the facts and circumstances of the case and the contentions raised observed that in the absence of due authentication and promulgation of the guidelines, its contents cannot be treated as an order of the Government and would only represent an expression of opinion. The Court further added that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order made on behalf of the Government.

"Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court or the High Court declares the law on the question arising for consideration, it would not be appropriate for the court to direct that the circular should be given effect to and not the view expressed in a decision of this Court or the High Court," the Court further observed. 

The Court also held that clarifications or circulars issued by the Central Government and State Government are not binding upon the court and that a circular which is contrary to the statutory provisions has no existence in law.

The effect of the clarificatory G.O. cannot, by any means, supersede or override the terms of the main order. This is an elementary principle of interpretation.

In the present case, since the circular issued by the Revenue Department has no legal effect, the Court, observed that the cutting and removal of `vembu trees' otherwise prohibited by law is an offence under Section 52 of the Kerala Forest Act, 1961.

Therefore, the Court observed that the prosecution initiated in this regard is not liable to be quashed.

The Court also clarified that the diversion of any forest land will require prior approval of the Central Government under Section 2 the Forest (Conservation) Rules, 1981 and it was further observed that the word “forest” in the Forest Conservation Act will not only include “forest” as is understood in the dictionary sense, but shall also cover any area recorded as forest in the Government records, irrespective of ownership.

No right of any description shall be acquired in or over a Reserved Forest except under a grant or contract in writing made by or on behalf of the Government or by or on behalf of some person in whom such right or the power to create such right was vested when the notification under section 19 was published or by succession from such person:
Provided that no patta shall, without the previous sanction of the Government, be granted for any land included within a Reserved Forest and every patta granted without such sanction shall be null and void." 

Advocates Javed Haider and P. Deepak appeared for the Petitioners. 

Public Prosecutor Advocate Sanal P. Raj and Government Pleader (Forest) Advocate Nagaraj Narayanan appeared for the Respondents. 

Case Title: Siraj v. State of Kerala and Abhilash v. State of Kerala and Anr. 

Citation: 2023 LiveLaw (Ker) 11

Click Here To Read/Download The Order