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Madhya Pradesh High Court · body

2005 DIGILAW 1209 (MP)

STATE OF M P v. SHABIR KHAN

2005-11-29

A.K.SHRIVASTAVA

body2005
Judgment ( 1. ) BY this petition under Article 226 of the Constitution of India, the petitioner has assailed the order dated 7-12-1993 passed by 1st Additional session Judge, Bhopal in Criminal Revision No. 232/93 allowing the revision of respondents No. 1 and 2 and setting aside the order passed by the authorized officer and Sub Divisional Officer, Vidisha dated 30th August, 1993 which has been affirmed by the appellate authority and Conservator of Forest, Bhopal circle Bhopal dated 1-10-1993. ( 2. ) IN brief the case of writ petitioner is that the Range Officer Basoda on coming to know that a truck bearing No. CPC 6623 is transporting 1400 sq. ft. flagstone illegally excavated from the forest land and from Section R. F. 190 which is under the reserved forest. A Panchanama was prepared on the spot and the truck was seized under Section 51 (1) of the Indian Forest Act, 1927 (for brevity the Act ). Necessary Panchanama in that regard was prepared and an offence under Section 26 (1) (g) of the Act was also registered and the seizure report was also reported to the authorized officer under Section 52 (2) of the act. The authorized officer issued notice as contemplated under sub-section (4)of Section 52 of the Act. ( 3. ) THE respondent No. 1 refuted the averments made in the notice issued by the authorized officer. Thereafter, evidence was led. The authorized officer passed an order on 30th August, 1993 (Annexure P/3) directing to confiscate the impugned truck as well as the flagstone in terms of Section 52 (3)of the Act. ( 4. ) FEELING aggrieved by the order passed by the authorized officer, an appeal under Section 52-A was preferred by respondents No. 1 and 2 here in this petition to the Appellate Authority/conservator of Forest, Bhopal Circle bhopal. The appellate authority concurred with the view taken by the authorized officer and put its stamp of approval on the order passed by the authorized officer. ( 5. ) FEELING aggrieved by the orders passed by the two authorities under the Act, respondent Nos. 1 and 2 of this petition, knocked the door of revisional court by preferring revision petition under Section 52-B of the Act. The revisional authority by the impugned order has set aside the orders of the two authorities under the Act and allowed the revision petition. 1 and 2 of this petition, knocked the door of revisional court by preferring revision petition under Section 52-B of the Act. The revisional authority by the impugned order has set aside the orders of the two authorities under the Act and allowed the revision petition. The revisional authority further directed to release the impugned flagstone as well as the truck from confiscation and it was directed to be delivered to Aaziz Khan (respondent no. 2 ). Hence this petition has been preferred by the State of Madhya Pradesh assailing the order passed by the revisional Court. ( 6. ) SHRI R. K. Samaiya, learned Counsel appearing for respondents no. 1 and 2 raised a preliminary objection in regard to the territorial jurisdiction of this Court. The contention is that since the original proceedings were initiated by the authorized officer constituted under the Act at Vidisha, therefore the Gwalior Bench of this Court is having jurisdiction to entertain and decide the petition. Facing this tight situation Shri Agrawal, learned Govt. Advocate by placing reliance on the decision of the Supreme Court Kusum ingots and Alloys Ltd. Vs. Union of India and another, (2004) 6 SCC 254 , has submitted that no doubt it is true the order Annexure P/3 dated 30-8-1993 was passed by the authorized officer at Vidisha but the appeal was preferred by respondents No. 1 and 2 before the appellate authority under the Act at Bhopal and the revision was also preferred by them at Bhopal and therefore since the part of cause of action has arisen at Bhopal and part of cause of action has arisen at Vidisha, therefore, the petitioner is free to file the petition either at Bench of this Court at Gwalior or at the Principal Seat at Jabalpur. ( 7. ) CONSIDERED the rival contentions of learned Counsel for the parties in regard to the territorial jurisdiction. ( 8. ) AFTER having heard them, I am of the view that the principal seat of this Court is also having territorial jurisdiction to hear this petition. Much light has been thrown by the Supreme Court in the case of Kusum Ingots and Alloys ltd. (supra) in that regard. ( 8. ) AFTER having heard them, I am of the view that the principal seat of this Court is also having territorial jurisdiction to hear this petition. Much light has been thrown by the Supreme Court in the case of Kusum Ingots and Alloys ltd. (supra) in that regard. The Apex Court has categorically held that in such a situation where the cause of action has partly arisen at one place and partly at another place where the appellate authority is situated, the writ petition would be maintainable at both the places. It would be condign to quote para 27 of the order of the Apex Court where this point has been dealt which reads thus:- 27. When an order, however, is passed by a Court or tribunal or an executive authority whether under provisions of a statute or otherwise, a part of cause of action arises at that place. Even in a given case, when the original authority is constituted at one place and the appellate authority is constituted at another, a writ petition would be maintainable constitutes a part of cause of action, a writ petition would be maintainable at both the places. In other words, as order of the Appellate Authority in the High Court within whose jurisdiction it is situate having regard to the fact that the order of the appellate authority is also required to be set aside and as the order of the original authority merges with that of the appellate authority. " Thus, by placing reliance on the decision of Kusum Ingots and Alloys Ltd. (supra), it can safely be said that the principal seat at Jabalpur is also having jurisdiction to entertain and decide this petition. The preliminary objection raised by learned Counsel for the respondents is hereby overruled. ( 9. ) COMING to the merits of the case, it has been contended by learned government Advocate that the revisional Court beyond the scope of Section 52 (b) of the Act interfered in the finding of facts recorded by the two authorities constituted under the Act and re-appreciated the evidence which is not at all permissible under the law because the provisions of Section 52 (b) of the Act is akin to Sections 399 and 401, Criminal Procedure Code. By placing reliance on the decision of the Supreme Court State of Maharashtra Vs. By placing reliance on the decision of the Supreme Court State of Maharashtra Vs. Jagmohan Singh kuldip Singh Anand and others, (2004) 7 SCC 659 , it has been submitted by learned Counsel that if the material evidence is overlooked by the two authorities only in that situation re-appreciation of the evidence by the revisional Court is permissible. According to learned Counsel two authorities constituted under the Act, since marshalled the evidence, therefore the revisional Court exceeded its jurisdiction by re-appreciating the evidence and hence the order impugned passed by the revisional Court cannot be allowed to remain stand. It has also been pointed out by learned Government Advocate that revisional Court interfered in the orders of the authorities constituted under the Act on three grounds. Firstly, the spot map was not prepared; the second ground is that other material available at the spot was not seized; and thirdly ASI Panchal was not in a position to give the exact position of the site. According to learned Counsel if the orders of the two authorities constituted under the Act, are read in proper perspective it would reveal that they are exhaustive in nature and touches each and every aspect of the matter. On these premised submissions, it has been argued that the order of revisional authority be set aside by restoring the orders passed by the authorized officer and appellate authority, constituted under the Act. ( 10. ) PER contra, Shri R. K. Samaiya, learned Counsel appearing for respondents No. 1 and 2 has submitted that the evidence of Panch witnesses of the seizure, namely, Hari Singh and Maan Singh has been totally ignored by the appellate authority, and in the order of the original authority there is only whisper of their evidence but the same was not marshalled by the said authority and therefore the revisional authority did not err in setting aside the impugned orders passed by the authorities. According to Shri Samaiya, learned Counsel appearing for respondents No. 1 and 2, the decision of Jagmohan Singh Kuldip singh Anand (supra), is not damaging the order of the revisional Court but as a matter of fact, it supports the view taken by the revisional Court for the simple reason that the evidence of Hari Singh and Maan Singh was totally overlooked. According to learned Counsel these two witnesses have not supported the case of the department and therefore the revisional Court rightly passed the impugned order. By placing heavy reliance on the decision of Estralla Rubber Vs. Dass Estate (P) Ltd. , (2001) 8 SCC 97 , it has been argued by Shri Samaiya that this Court while exercising jurisdiction under Article 227 of the Constitution of india should not interfere in the order passed by the revisional Court specially when no dereliction from the duty or flagrant violation of fundamental principles of law or justice has not been pointed out. Thus, the contention of learned Counsel for the respondents No. 1 and 2 is that this petition sans substance and the same be dismissed. ( 11. ) CONSIDERED the arguments. ( 12. ) THERE is no merit in the contention of learned Govt. Advocate that by re-appreciating the evidence of Hari Singh and Maan Singh the revisional court exceeded its revisional jurisdiction. The decision of Jagmohan Singh kuldip Singh Anand (supra), throws sufficient light that in case if material evidence is overlooked by the Court below the High Court can interfere while exercising the revisional jurisdiction. The Supreme Court also placed reliance on its earlier decision Ram Briksh Singh Vs. Ambika Yadav, (2004) 7 SCC 665 , in that regard. In the present case, on going through the order passed by the appellate authority, constituted under the Act, it reveals that the evidence of abovesaid Panch witnesses were not at all taken into consideration. In the order of the original authority there is some whisper in regard to the evidence of these two witnesses but the evidence of these two witnesses was not marshalled. Thus, i am of the view that the revisional Court did not err in marshalling the evidence of these two witnesses. ( 13. ) THE next question is whether the revisional Court rightly allowed the revision filed by respondents No. 1 and 2 and rightly directed to release the impugned truck and the flagstone from confiscation and rightly directed to deliver the same to respondent No. 2. The another vital question is whether the evidence of Haricharan Panchal, ASI should be ignored if it is contrary to the panch witnesses. It is no doubt true that the two authorities constituted under the Act by appreciating and marshalling the evidence of Haricharan Panchal. The another vital question is whether the evidence of Haricharan Panchal, ASI should be ignored if it is contrary to the panch witnesses. It is no doubt true that the two authorities constituted under the Act by appreciating and marshalling the evidence of Haricharan Panchal. ASI came to hold that the impugned flagstone is of survey No. 190 which is a reserved forest land. The two authorities at great length discussed the evidence in that regard. The original authority after appreciating and marshalling the evidence of the ASI Panchal ultimately came to hold that the truck owner and the driver failed to prove that the impugned flagstones were not in their knowledge that they belong to survey No. 190 which is a reserved forest area and by their consent the flag stones were taken away from the reserved forest area. ( 14. ) THE revisional Court disbelieved the statement of Haricharan panchal ASI on the ground that he did not prepare the spot map, he failed to state the area of the quarry, and he did not seize the flagstones from the spot. All these points were discussed in detail by the two authorities constituted under the act and it was held that the flagstone was taken out from the reserved forest area and was kept in the impugned truck, which was standing in the reserved forest area and was kept in the impugned truck, which was standing in the reserved forest area. Apart from this, it was not necessary to prepare the spot map for the simple reason that ASI after seizing the truck and the flagstone called the Range officer, namely, S. N. Sharma and also Forest Guard Rafeeq Ahmad and showed them that from a particular place the flagstone and the truck was seized. According to evidence of S. N. Sharma and Rafeeq Ahmad flagstones and the truck which were seized from the survey No. 190, is a reserved forest area. Thus, if no spot map was prepared or the ASI could not state the exact position of reserved forest, it cannot be said that the flagstones were not carried away from the reserved forest area. Thus, if no spot map was prepared or the ASI could not state the exact position of reserved forest, it cannot be said that the flagstones were not carried away from the reserved forest area. Two authorities constituted under the Act by keeping the evidence of Range Officer S. N. Sharma and Forest Guard Rafeeq in juxtaposition to the evidence of ASI Haricharan Panchal came to the conclusion and arrived at a finding of fact that the flagstones were taken out from the reserved forest area and at that place the truck was also standing in which the flagstones were found. ( 15. ) THE learned revisional Court exceeded its jurisdiction by re-appreciating the evidence of the ASI Haricharan Panchal and came to a different conclusion. I have already held hereinabove that a pure finding of fact was recorded by the two authorities constituted under the Act holding that the flagstones which were kept in the truck were seized from survey No. 190 which is a reserved forest area. Merely because the evidence of Panch witnesses, namely, Hari Singh and Maan Singh is contrary to the evidence of ASI Panchal and that of Range Officer S. N. Sharma and Forest Guard Shafeeq Ahmad, would not dilute the finding of fact arrived at by the two authorities constituted under the Act. It appears that these two witnesses were won over by the respondents and, therefore, they became hostile and they gave evidence contrary to their police statement. In the case of Estralla Rubber (supra) of the apex Court, which has been placed reliance by learned Counsel appearing for respondents No. 1 and 2, it has been specifically held that if there is serious dereliction of duty and flagrant violation of principles of fundamental law or justice or the grave injustice would remain unchecked and uncorrected this court is having jurisdiction to interfere in the order passed by the lower Court and Tribunal. I have already held hereinabove that from the reserved forest area the flagstones were extracted and removed and were kept in a truck which was seized from the reserved forest area and therefore the order of the revisional court if allowed to remain standing would occasion a grave injustice. ( 16. ) AB judicatio, this petition succeeds and is hereby allowed. ( 16. ) AB judicatio, this petition succeeds and is hereby allowed. The order passed by revisional Court dated 7-12-1993 (Annexure P/1) is hereby quashed and the orders passed by the authorities constituted under the Act, i. e. , Sub divisional Officer Forest dated 30-8-1993 (Annexure P/3) and the appellate authority/conservator of Forest dated 1-10-1993 are hereby restored. ( 17. ) THE petition is allowed with no order as to costs. Writ Petition allowed.