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1983 DIGILAW 116 (MP)

Dildar Mohammad Petitioner v. State of M. P.

1983-04-08

G.G.SOHANI, R.K.VIJAYWARGIYA

body1983
Judgement VIJAYVARGIYA, J. :- The material facts giving rise to this petition under Art.226 of the Constitution are as follows:- The petitioner is engaged in the business of running a Saw Mill at village Piploda, tahsil Jaora, district Ratlam. The petitioner has installed two saw machines: one horizontal and one vertical in his saw mill. According to the petitioner he has regularly paid the annual license fee as demanded by respondent 4 Van Parikshetradhikari (Forest Ranger). On 28-4-1982 the saw mill of the petitioner was inspected by a checking party led by respondents 3 and 4. The two saw machines of the petitioner were sealed by putting a chain and lock on them. The respondents 3 and 4 also seized some pieces of timber lying in the saw mill of the petitioner. The petitioner also alleged that some papers were got signed by him by the respondent at the time of checking but he being an illiterate person did not understand the nature of the said papers. The petitioner was then served with a notice (Annex. 'A') dated 30-6-1982 stating that the petitioner was running a saw mill without permission of the competent authority; that sagon wood was being illegally cut on the saw machine, that accounts were not properly maintained nor produced at the time of checking on 28-4-1982 and that offences punishable under M. P. Van UPaj Vyapar Viniyam Adhiniyam 1969 (for short 'the State Act') M. P. Van Upaj Vyapar Viniyaman Kastha Niyam, 1973. M. P. Van Upaj Adhivashan (Gaman) Niyam, 1981 and Indian Forest Act. 1927 (for short the Central Act were committed by the petitioner and requiring the petitioner to show cause within two days from the receipt of the notice why a sum of Rs. 14,000 being the market value of the two saw machines and Rs. 1,000 as fine for running them illegally and Rs. 1,000 as fine for not keeping the accounts properly be realised from the petitioner. In the reply given by the petitioner to the said notice the petitioner stated that the amount demanded from him was excessive and he was unable to pay the same. Thereafter the Divisional Forest Officer respondent 2 passed as order (Annex. 'C') on 12-7-1982 in exercise of powers vested in him under S.19 of the State Act stating therein that the petitioner has violated the provisions of Ss. Thereafter the Divisional Forest Officer respondent 2 passed as order (Annex. 'C') on 12-7-1982 in exercise of powers vested in him under S.19 of the State Act stating therein that the petitioner has violated the provisions of Ss. 5, 10, 11 and 13 of the said Act and rules framed thereunder and determining the value of the saw machines at Rs. 10,000 and imposing a penalty of Rs. 100 under S.19 (1) of the State Act and further directing that the saw machines would be released opt payment of the said amount of Rupees 10,000 and also directing confiscation of the timber seized from the premises of the petitioner. The petitioner has challenged the said order (Annex. 'C') passed by respondent 2 in this petition on the ground that respondent 2 had no jurisdiction to seal the saw machines of the petitioner and to order the release of these machines only on tent of Rs. 10,000 by the Petitioner to respondent 2 and to impose the Penalty of Rs. 100 on the petitioner. 2. In the return the respondents contended that the Petitioner was running the saw mill without obtaining any licence therefore and in contravention of R.27 of the Transit Rules. 1961 framed under the provisions of S.41 of the Central Act. It was further contended that the saw machines were liable to confiscation under S.55 of the Central Act and that the timber seized from the premises of the petitioner was the property of the Government being specified forest produce. It was also stated in the return that respondent 2 had jurisdiction under S.19 of the State Act to pass the impugned order and the petitioner was not entitled to any relief in this petition. 3. The learned counsel for the petitioner contended that even if the petitioner did not get himself registered under Section 11 of the State Act as a manufacturer and used specified forest Produce as a raw material or contravened any provision of the State Act respondent 2 had no jurisdiction to seal the saw machines of the petitioner and to direct that the same shall be released on payment of Rs. 10,000 by the petitioner and to impose the penalty of Rs. 100 on the petitioner. 10,000 by the petitioner and to impose the penalty of Rs. 100 on the petitioner. According to him the provisions of Section 19 of the State Act are not applicable because the offences under the State Act were not compounded by the petitioner. He further contended that the saw machines were not property liable to be confiscated and therefore respondent 1 had no power to determine their value and to direct the petitioner to pay the same to respondent 2. So that the machine may be released. 4. The contention of the learned counsel for the petitioner is well founded. Section 19 (1) of the State Act provides that the State Government may, by notification empower a forest officer to accept from any person against whom a reasonable suspicion exists that he has committed an offence punishable under this Act a sum of money by way of compensation for the offence which such person is suspected to have committed and when any property other than a specified forest produce has been seized as liable to confiscate to release the same an payment of the value thereof as estimated by such officer. 5. In the present case it is not disputed that the petitioner has not paid any sum of money by way of compensation for the offence which he was suspected to have committed. The respondent in their return stated that the petitioner proposed to compound the offence committed by him and for that purpose made an offer in the printed Rajinama a copy of which is produced as Ann. R-8. It is further stated that the compromise was accepted by Range Officer and was forwarded for action to the Divisional Forest Officer having jurisdiction to determine the value of the property seized in the case. 6. Now it cannot be said that by signing the document Annex. R-8 the petitioner has compounded the offence. Under S.19 (1) of the State Act the offence can be compounded only by payment of money by the person concerned and accepted by the authorised officer. In the present case as stated above it is common ground that no payment was made by the petitioner and therefore it cannot be said that the offence was compounded by the petitioner. Under S.19 (1) of the State Act the offence can be compounded only by payment of money by the person concerned and accepted by the authorised officer. In the present case as stated above it is common ground that no payment was made by the petitioner and therefore it cannot be said that the offence was compounded by the petitioner. Moreover, S.19 of the State Act empowers the competent officer to accept from a person a sum of money by way of compensation for the offence. It does not empower such officer to impose any penalty upon the person who is suspected to have committed any offence under the State Act. Thus respondent 2 had no power to proceed under S.19 of the State Act and to determine the value of saw machines as also to impose penalty upon the petitioner. 7. There is also another infirmity in the order passed by respondent 2 : saw machines which were sealed in the present case cannot be said to be property liable to confiscation. No provision in the State Act was brought to our notice which provides that any implement or tool used in the manufacture of any article in which specified forest produce forms a raw material without a licence or permit or without registration is liable to confiscation. 8. The learned counsel for the respondents placed reliance upon the provisions of S.2 (q) of the State Act which reads as under:- "S.2 (q). Words and expressions used but not defined in this Act and defined in the Indian Forest Act. 1927 (16 of 1927) shall have the meaning assigned to them in that Act." He contended that S.55 (1) of the Central Act provides in what cases property is liable to confiscation and that for the definition of the expression 'property' liable to confiscation we must look to the provisions of the Central Act. This contention was negatived by us in Swaroopchandra Garg v. State of M. P. (M. P. No. 203 of 1983) decided on 31-3-1983. 9. Thus the saw machines cannot be said to be property liable to confiscation under the provisions of the State Act and therefore on that ground also respondent 2 had no jurisdiction to determine their value and to direct their release only on payment of the value thereof so determined by him. 10. 9. Thus the saw machines cannot be said to be property liable to confiscation under the provisions of the State Act and therefore on that ground also respondent 2 had no jurisdiction to determine their value and to direct their release only on payment of the value thereof so determined by him. 10. Realising the difficulty the learned Deputy Government Advocate appearing for the respondents contended that the petitioner has also contravened the provisions of the Central Act and the rules framed thereunder and therefore S.55 of the Central Act was attracted and the saw machines being tools used in committing a forest offence under the Central Act they were liable to confiscation and that respondent 2 had power to determine their value under S.68 of the Central Act. He also contended that a report (Annex. R-10) of the offence having been committed by the petitioner was made by the respondents to the Magistrate having jurisdiction. 11. It is not necessary for us to consider this aspect of the matter because respondent 2 while passing the order (Annex. 'C') has not proceeded on the basis that the petitioner has committed any offence under the Central Act. He has proceeded on the basis that the petitioner contravened the provisions of the State Act. This is also clear from the contents of para 6 of the return in which it is stated as follows: "Thus after considering the case fully in the light of the reply of the petitioner, the D.F.O. having jurisdiction passed the order dated 12-7-82 in exercise of his powers under S.19 of the Adhiniyam, 1969." 12. It is thus clear that respondent 2 in passing the impugned order has acted under S.19 of the Adhiniyam and not under S.68 of the Central Act as sought to be contended by the learned Deputy Government Advocate. We have already held above that respondent 2 had no jurisdiction to act under S.19 of the Adhiniyam in the present case. The order (Annex. 'C') passed by respondent 2 therefore in so far as it relates to the imposition of a penalty of Rs. 100 on the petitioner and to the petitioner and to the determination of the value of the saw machines and to the release thereof only on payment of the value so determined deserves to be quashed. 13. The order (Annex. 'C') passed by respondent 2 therefore in so far as it relates to the imposition of a penalty of Rs. 100 on the petitioner and to the petitioner and to the determination of the value of the saw machines and to the release thereof only on payment of the value so determined deserves to be quashed. 13. The learned counsel for the petitioner stated at the hearing that he has instructions not to press the relief of the return of the specified forest produce seized by the respondents from the premises of the petitioner. We also wish to make it clear that the respondents would be at liberty to proceed against against the petitioner according to law if in their opinion the petitioner has committed any offence under the provisions of any Act and rules framed thereunder. 14. As a result of the discussion aforesaid this petition is allowed. The order (Annex. 'C') dated 12-7-1982 passed by respondent 2 in so far as it relates to the determination of the value of the saw machines of the petitioner and to their release on payment of such value by the petitioner and to the imposition of the penalty of Rs. 100 on the petitioner is quashed. The respondents are directed to remove the seal on the saw machines of the petitioner and to hand over possession thereof to the petitioner within 15 days from today. In the circumstances the parties shall bear their own costs of this petition. The outstanding amount of security deposit be refunded to the petitioner after verification.