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2003 DIGILAW 573 (PAT)

Shiv Kumar Singh v. State Of Bihar

2003-05-13

R.S.GARG

body2003
Judgment 1. Heard learned counsel for the parties. 2. By this writ application the petitioner seeks to challenge the correctness, validity and propriety of the order dated 2.2.2002 passed in revision case no. (C) 28 of 1999 filed by the D.F.O. Purnea against the present petitioner, the revisional authority allowed the revision petition, set aside the appellate order and restored the order passed by the Divisional Forest Officer, Purnea. 3. Number of questions were raised in the present writ application to challenge the validity of the revisional order but on 16.1.2003 an additional ground was raised that in accordance with Section 52(B) of the Indian Forest Act, in its application to the State of Bihar, a party to appeal can only file a revision to the Secretary and as the D.F.O. was not a party to appeal, he could not prefer a revision petition. It was also contended that the D.F.O. was the first authority to pass the order of confiscation and as he has exercised his quasi-judicial powers directing confiscation of the vehicle and other produce he himself could not prefer a revision petition. Learned counsel for the petitioner submits that this question was raised in the main writ application. On 16.1.2003 in presence of the learned counsel for the State Government the arguments were noted and notice of the proceedings and the arguments were given to the learned counsel for the State. 4. The facts in nut shell are that certain properties including the vehicle were seized inter alia, observing that they were involved in commission of the forest offence and were liable to confiscation. On 3.12.1998 at about 1.20 p.m. the Forester seized tractor no. BR-11A-1675 attached with a trailor loaded with 16 pieces of the Sisam logs and arrested two persons. A seizure memo was prepared and confiscation proceeding bearing no. 55 of 1998 commenced in the Court of Authorised Officer-D.F.O., Purnea and commencement of the proceedings was informed to the Chief Judicial Magistrate, Purnea. Thereafter, the Authorised Officer passed an order directing confiscation of the vehicle on 14.1.1999. The owner of the vehicle being aggrieved by the said order filed an appeal as provided under Section 52(A) of the Forest Act which was registered as Forest Appeal No. 21 of 1999. After hearing the parties, the appellate authority/Collector allowed the appeal. Thereafter, the Authorised Officer passed an order directing confiscation of the vehicle on 14.1.1999. The owner of the vehicle being aggrieved by the said order filed an appeal as provided under Section 52(A) of the Forest Act which was registered as Forest Appeal No. 21 of 1999. After hearing the parties, the appellate authority/Collector allowed the appeal. Being aggrieved by the said order, the State in its name did not prefer a revision under Section 52-B of the Forest Act in its application to the State of Bihar, but a revision was filed by the Divisional Forest Officer who himself was the authorized adjudicating authority and has passed the first order of confiscation. After hearing the parties the revisional authority allowed the revision, set aside the appellate order and restored the order passed by the D.F.O. who was an appellant before the revisional authority. 5. Apart from challenging the order on its own merit and the jurisdiction of the revisional authority in interfering on the question of fact, a question was raised that the revision before the revisional authority at the instance of the D.F.O. was not maintainable. It was contended that the authority which has passed the first order would not be allowed to prefer a revision because the authority is an authorized officer and while passing such an order is not required to look into the interest of the State Government but is obliged to pass an honest order in its quasi-judicial function. It is contended that an officer of the State Government be he a Forester or Conservator of Forest, in fact, do not anything personally but acts for and on behalf of the State Government either under the orders of the appointment or authorisation. If such is the position, then the first authority which has passed the order could not challenge the appellate order because the order passed by the first authority would merge in the appellate order. 6. Contending contrary to what is argued by the learned counsel for the petitioner, it was submitted on behalf of the State Government that in accordance with section 2(2) of the Act, every person working in the forest department is a forest officer and as the forest officers are entitled to protect the interest of the State Government, the D.F.O. was justified in filing the revision. It was also contended that section 52(B) simply provides that any party to the appeal aggrieved by the final order etc. by the appellate authority may prefer a revision petition, therefore, the D.F.O, representing the interest of the State Government was entitled to file a revision petition. 7. I have heard the parties at length. 8. Section 2(2) of the Indian Forest Act, 1927 provides that "Forest Officer" means any person whom the State Government or any Officer empowered by the State Government in this behalf, may appoint to carry out all or any of the purposes of this Act or to do anything required by this Act or any rule made thereunder to be done by a Forest Officer. From a perusal of the definition it would clearly appear that it is an inclusive definition. Every person authorised by the State Government empowered by the State Government or so authorised by such officer would be deemed to be a Forest Officer. The general definition as provided under sub-section 2 of Section 2 will have to be read in conjunction with sub-section 2 and sub-section 3 of section 52 of the Indian Forest Act. Sub-section 2 provides that every officer seizing any property etc. shall produce the property before an officer not below the rank of the D.F.O. authorised by the State Government in this behalf ... From a perusal of sub-section 2 of section 52, it would clearly appear that there is a statutory distinction between an officer and an authorized officer. A Forest Officer would be one falling under Section 2(2) of the Act while an authorised officer would be an officer, specially authorised by the State Government for the purpose of sub-section 2 onwards of Section 52. In the present case, undisputedly, the D.F.O. Purnea was an authorised officer. After the seizure of the articles the same were to be produced before him and the said authorised officer after giving proper opportunity of hearing to the affected party was obliged to pass a quasi-judicial order. The moment the D.F.O. is authorised to act as an officer for the purpose of section 52 of the Act then though he continues to be a Forest Officer but would not represent the interest of the State Government because he becomes an officer who has to pass a quasi-judicial order. The moment the D.F.O. is authorised to act as an officer for the purpose of section 52 of the Act then though he continues to be a Forest Officer but would not represent the interest of the State Government because he becomes an officer who has to pass a quasi-judicial order. The moment an authority is conferred upon any officer of the State Government to decide something for or against any party including the State Government then such officer has to act honestly and is not required only to protect the interest of the State Government. In the present matter, the order of confiscation was passed by the D.F.O., Purnea. Against the said order an appeal was preferred under Section 52(A) of the Act to the District Magistrate. From the appeal memo it would clearly appear that the Divisional Forest Officer, the Authorised Officer, was not joined as party respondent in the said appeal. However, the interest of the State Government was sought to be represented by the said officer and counsel engaged by him. 9. After the said appeal was allowed a revision certainly could be filed by any party to the appeal if it was aggrieved by the final outcome. Undisputedly, the D.F.O. was not a party respondent in appeal. If he was not a party respondent to the appeal then in his personal name he could not prefer an appeal. From the revision memo it would clearly appear that no revision has been filed by the State Government but the D.F.O. being aggrieved by the order has filed the revision petition. The D.F.O., who himself was the authorised officer and has passed the confiscation order, in the opinion of this Court, could not prefer a revision petition firstly because he was the adjudicating officer and secondly because he was not a party respondent in appeal. In fact, an appeal ought in have been filed by the State Government through some officer specially designated for purposes or authorised for filing the revision petition. By special order or a general order some officer other than the adjudicating authorised officer could always be asked to file a revision petition against the appellate order. 10. In fact, an appeal ought in have been filed by the State Government through some officer specially designated for purposes or authorised for filing the revision petition. By special order or a general order some officer other than the adjudicating authorised officer could always be asked to file a revision petition against the appellate order. 10. I pose a question to myself that if the D.F.O. after hearing the parties passes a final order in favour of the defendants/respondents before it, directing release of the goods then on the administrative side can he himself challenge his order before the appellate authority? The answer is no. Then after his order merges in the appellate order he would not be allowed to challenge the appellate order because by challenging the appellate order he would be submitting before the revisional authority that whatever was done by him as the adjudicating officer was absolutely correct and the appellate court should not have interfered in the matter. In hierarchy of the system a sub-ordinate to the appellate authority cannot be allowed to challenge the correctness, validity and propriety of the appellate order and for that only reason section 52(C) employes the words that any party to the appeal if aggrieved by the order can file a revision petition. 11. It is also contended that as the D.F.O. is exercising a dual capacity, firstly as the adjudicating officer and secondly as a forest officer under sub-section 2 of section 2 of the Indian Forest Act (Bihar Amendment) he was entitled to prefer a revision petition. The argument is misconceived. The State Authorities are not trying to understand a distinction between a forest officer and an authorized officer. If there is a marked and sharp distinction between the forest officer and an authorised officer then in such a case the forest officer can prefer a revision petition for and on behalf of the State Government, but the authorised adjudicating/confiscating officer would not be allowed to challenge the validity of the order. 12. If there is a marked and sharp distinction between the forest officer and an authorised officer then in such a case the forest officer can prefer a revision petition for and on behalf of the State Government, but the authorised adjudicating/confiscating officer would not be allowed to challenge the validity of the order. 12. It will also have to be seen that section 2(2) of the Indian Forest Act designates every officer or every employee of the Forest Department as a Forest Officer while sub-section 2 and sub-section 3 of the section 52 (Bihar Amendment) clearly specify that no person below the rank of the Divisional Forest Officer would be designated as a D.F.O. If the State and the statute are maintaining all these distinction between a forest officer and an authorised officer then in such a situation a forest officer could prefer a revision and the designated officer/authorised officer/confiscating officer-cum-D.F.O. could not prefer a revision petition. 13. After giving my thoughtful consideration to the argument raised by the parties, I am unable to hold that the revision before the revisional authority was maintainable. As the revision was not maintainable before the authority, the order passed by the revisional authority cannot be allowed to stand. It deserves to and is accordingly quashed. 14. At this stage, learned counsel for the State submits that the State be allowed to file a revision petition in accordance with section 52(B) of the Act. I do not think that such a liberty is required to be given to the State authorities. If the law allows them to challenge the appellate order in a duly constituted revision, they would certainly be entitled to prefer a revision and may claim before the revisional authority that the delay in filing the revision deserves to be condoned.