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2006 DIGILAW 785 (GUJ)

NAVINCHANDRA K. CHAVDA v. RANGE FOREST OFFICER

2006-12-04

D.H.WAGHELA

body2006
( 1 ) INVOKING Articles 226 and 227 of the Constitution, the petitioner has prayed to set aside the order dated 8. 4. 1996 of the Dy. Conservator of Forest, Valsad whereby truck bearing Registration No. GRP 3866 of the petitioner, inter alia, was ordered to be confiscated under the provisions of section 61-A of the Indian Forest Act, 1927, as amended by the Gujarat Acts 15 of 1960 and 19 of 1983 (for short, "the Act" ). Admittedly, the Act provides for a remedy for challenging the impugned order in the form of provisions of Sections 61-C and 61-D of the Act. The petitioner has not filed a certified copy of the impugned order, nor was such a copy tendered at the time of hearing, though required in view of certain material parts having been obliterated in the uncertified photocopy of the impugned order. ( 2 ) THE petition is filed by the petitioner in the capacity of the holder of Power of Attorney for the owner of the vehicle in question, even as he himself had filed the earlier petition for the same purpose and in the same capacity and posed as the owner of the vehicle for all purposes. In that petition, being Special Civil Application No. 1221/92, under Article 227 of the Constitution, the petitioner had challenged the order of the learned Additional Sessions Judge, Valsad in Criminal Appeal No. 7/88 whereby the Court had confirmed the order dated 8. 3. 1988 of the Dy. Conservator of Forest, confiscating the truck. The petitioner had succeeded in that petition and the impugned order of confiscation as well as the judgment of the learned Addl. Sessions Judge were set aside on 29. 09. 1992 by this court. That judgment was however carried in appeal by the State, whereupon the Supreme Court, while dismissing the petition for Special Leave to Appeal, observed that if the department desired to initiate action against the registered owner of the vehicle under Section 61-B, it would not be precluded from doing so. Thus, after the aforesaid order dated 24. 1. 1994 of the Supreme Court, fresh notice dated 11. 3. 1994 appears to have been issued and again replied by the same holder of the Power of Attorney of the original owner. After considering that reply and elaborately discussing the facts and circumstances, the impugned order dated 8. 4. 1996 was made. Thus, after the aforesaid order dated 24. 1. 1994 of the Supreme Court, fresh notice dated 11. 3. 1994 appears to have been issued and again replied by the same holder of the Power of Attorney of the original owner. After considering that reply and elaborately discussing the facts and circumstances, the impugned order dated 8. 4. 1996 was made. ( 3 ) THE only argument canvassed by the learned Advocate for the petitioner was that, it was already held in the earlier judgment rendered in the case of the holder of the Power of Attorney that the protection conferred upon the agent of the owner of the vehicle applied to the owner as well. When a motor vehicle was used for a regular and lawful transport of the goods, the driver or the person in charge of the vehicle might divert the vehicle for unlawful use for carrying forest-produce without the knowledge or connivance of the owner and the owner could not be said to have foreseen such an unlawful use. If an innocent and unwary owner were attributed knowledge or connivance in carrying of forest produce by the driver, the very provision would be rendered nugatory and perhaps void. Thus, the observations of this Court in the earlier judgment in Navinchandra K Chavda v. Range Forest Officer and Anr. ( 1993 (1) GLR 948 and in State of Gujarat v. Luhana Prabhudas Vrajlal [ 1990 (2) GLR 1300 ] that, if the owner of the vehicle proved to the satisfaction of the officer that it was used in carrying forest-produce without the knowledge or connivance of the owner himself, no order confiscating the vehicle could be made under Section 61-A of the Act, were relied upon to press the petition for the relief of releasing the vehicle. ( 4 ) AS seen from the above record of facts, a fresh order of confiscation of the vehicle and the forest-produce has come to be made after and in pursuance of the order of the Supreme Court. Then the proper efficacious, alternative remedy available to the petitioner was to approach the appropriate Court under the provisions for appeal under section 61-D of the Act. Instead of following that course, the petitioner has made an averment in the petition in para 5 that the petitioner has no other alternative efficacious remedy except to approach this Court. Then the proper efficacious, alternative remedy available to the petitioner was to approach the appropriate Court under the provisions for appeal under section 61-D of the Act. Instead of following that course, the petitioner has made an averment in the petition in para 5 that the petitioner has no other alternative efficacious remedy except to approach this Court. The petition is liable to be dismissed only on that ground. But a decade having been passed during the pendency of the petition and several judgments of the Supreme Court having been reported in the meantime, and the petition having been argued only on a legal ground, it may not be improper to decide the petition on merits. It is obvious that the main ground taken by the same petitioner, stepping into the shoes of the original owner, was only that the owner of the truck, who had left the shores of India after handing over the truck to the holder of his Power of Attorney, could not be attributed the knowledge of a forest offence being committed by the driver employed or instructed by his Power of Attorney holder. It was argued on that basis that the fresh notice was issued and the impugned order was made without application of mind to the obvious facts staring into the eyes of the authorities. ( 5 ) LEARNED APP submitted that it was a fresh round of litigation and neither the observations made in the earlier order of this Court nor the factum of the earlier petition having been allowed would influence the decision on merits of the order presently under challenge. It was further submitted that the petitioner had relied upon a factual assumption and completely failed to discharge the onus of proof cast upon him, while facing the fresh show cause notice issued after the order of the Supreme Court. ( 6 ) IT would be necessary and pertinent to refer to the following relevant provisions of the Act before examining the rival contentions. The Act provides for penalties and procedure in Chapter IX of which Section 52 reads as under: "52. ( 6 ) IT would be necessary and pertinent to refer to the following relevant provisions of the Act before examining the rival contentions. The Act provides for penalties and procedure in Chapter IX of which Section 52 reads as under: "52. Seizure of property liable to confiscation - (1) When there is reason to believe that a forest-offence has been committed in respect of any forest-produce, such produce, together with all tools, boats, carts or cattle used in committing any such offence, may be seized by any Forest Officer or Police Officer. " By Gujarat Act 15 of 1960, the word "carts" is substituted by the word "vehicles" in the above section. Similar substitution of the word "carts" by the word "vehicles" was made in Section 55 of the Act, which reads as under: "55. Forest-produce, tools, etc. , when liable to confiscation - (1) All timber or forest-produce which is not the property of Government and in respect of which a forest-offence has been committed, and all tools, boats, vehicles and cattle used in committing any forest-offence, shall subject to section 61-G, be liable to confiscation. (2) Such confiscation may be in addition to any other punishment prescribed for such offence. " "60. Property when to vest in Government -When an order for the confiscation of any property has been passed under section 55 or section 57, as the case may be, and the period limited by section 59 for an appeal from such order has elapsed, and no such appeal has been preferred, or when, on such an appeal being preferred, the Appellate Court confirms such order in respect of the whole or a portion of such property, such property or such portion thereof, as the case may be, shall vest in the Government free from all encumbrances. " "61a Confiscation by Forest Officer in certain cases - (1) Notwithstanding anything contained in the foregoing provisions of this Chapter or in any other law for the time being in force, where a forest-offence is believed to have been committed in respect of forest-produce which is the property of the Government, the officer seizing the property under sub-section (1) of section 52, shall, without any unreasonable delay, produce it, together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence, before an officer authorised by the State Government in this behalf, by notification in the Official Gazette, not being below the rank of an Assistant Conservator of Forest hereinafter referred to as the "authorised officer". (2) Where an authorised officer seizes under sub-section (1) of section 52, any forest-produce which is the property of the State Government or where any such property is produced before the authorised officer under sub-section (1) and he is satisfied that a forest-offence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest-offence, order confiscation of the property together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence. " Sub-section (3 ). . . . . . . . Sub-section (4 ). . . . . . . . "61b. Issue of show-cause notice before confiscation under section 61a - (1) No order confiscating any forest-produce or tools, ropes, chains, boats, vehicles and cattle shall be made under section 61-A except after notice in writing to the person from whom it is seized informing him of the grounds on which it is proposed to confiscate it and considering his objections, if any: provided that, no order confiscating a motor vehicle shall be made except, after giving a notice in writing to the registered owner thereof, if in the opinion of the authorised officer it is practicable to do so and considering his objections, if any. (2) Without prejudice to the provisions of sub-section (1), no order confiscating any tools, rope, chain, boat, vehicle or cattle shall be made under section 61-A, if the owner of the tools, rope, chain, boat, vehicle or cattle proves to the satisfaction of the authorised officer that it was used in carrying forest-produce without the knowledge or connivance of the owner himself, his agents, if any, and the person in charge of the tools, rope, chain, boat, vehicle or cattle and that each of them had taken all reasonable and necessary precautions against such use. " 61c-61e. . . . . . . . . "61f Property confiscated when to vest in Government. When an order for confiscation of any property has been passed under section 61a or 61c or 61d and such order has become final in respect of the whole or any portion of such property, such property or portion thereof, or if it has been sold under sub-section (3) of section 61a, the sale proceeds thereof, as the case may be, shall vest in the State Government free from all encumbrances. " 6. This Court had, in State of Gujarat v. Luhana Prabhudas Vrajlal (supra) entertained the petition under Article 227 of the Constitution, set aside the order of the learned Additional Sessions Judge and remanded the matter for rehearing after accepting the argument of the State that, by virtue of sub-section (1) of section 61-B, the owner must satisfy the authorised officer that the vehicle was used in carrying the forest-produce without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the vehicle, and they had taken all reasonable and necessary precautions against such use. ( 7 ) IN a recent decision of the Supreme Court in State of West Bengal v. Sujit Kumar Rana ( AIR 2004 SC 1851 ), it is observed in para 20 that, statues which provide for protection of forests to maintain ecological balance should receive liberal construction at the hands of the superior Courts. Interpretive exercise of such power should be in consonance with the provisions of such statutes not only having regard to the principle of purposive construction so as to give effect to the aim and object of the Legislature; but keeping the principles contained in Articles 48-A and 51a (g) of the Constitution of India in mind. Interpretive exercise of such power should be in consonance with the provisions of such statutes not only having regard to the principle of purposive construction so as to give effect to the aim and object of the Legislature; but keeping the principles contained in Articles 48-A and 51a (g) of the Constitution of India in mind. The provisions for confiscation have been made as a deterrent against felling of trees and deforestation. It is further observed in para 25 of the judgment that a notice was required to be issued to the owner of the vehicle and an opportunity had to be granted to him so as to enable him to show that the vehicle was used for carrying forest-produce without his knowledge or connivance and by necessary implication precautions therefor had been taken. ( 8 ) THE above discussion of the relevant legal provisions and judgments would clearly show that even as the owner of the vehicle is required to be given an opportunity of being heard, the Forest Officer is empowered to order confiscation of the property in respect of which forest-offence has been committed, together with the vehicle used in carrying it. And in fact, under the provisions of section 55, all timber or forest-produce in respect of which a forest offence was committed, and all tools, boats, vehicles and cattle used in committing any forest offence, were liable to confiscation. ( 9 ) SUB-SECTION (2) of section 61-A clearly empowers the authorized officer to order confiscation of the property together with the vehicle used in committing the forest-offence only on the basis of his satisfaction that a forest-offence was committed in respect of the property. The safeguard provided in the provisions of section 61-B, particularly in respect of the motor vehicles, provides for a notice to the registered owner of the vehicle and consideration of his objections, if any. The safeguard provided in the provisions of section 61-B, particularly in respect of the motor vehicles, provides for a notice to the registered owner of the vehicle and consideration of his objections, if any. The aforesaid power to confiscate is, however, restricted by the provisions of sub-section (2) under which no order of confiscation of a vehicle could be made under section 61-A if the owner of such vehicles proves to the satisfaction of the authorized officer that the vehicle was used in carrying forest produce without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the vehicle and that each of them had taken all reasonable and necessary precautions against such use. The language of the provision is clear and without any ambiguity it imposes the burden of proof on the owner of the vehicle to not only show that forest produce was carried in the vehicle without his own knowledge or connivance but his agent, if any, and the person in charge of the vehicle had also not connived at or known the fact of forest produce being carried in the vehicle. Such defence requires further proof that the owner, his agent and the person in charge of the vehicle each had taken all reasonable and necessary precautions against such use of the vehicle. In absence of such evidence as would prove to the satisfaction of the authorized officer that the owner, his agent and the person in charge of the vehicle had no knowledge and had not connived at the carrying of forest produce and that each of them had taken reasonable and necessary precautions against such use, there can hardly be any ground for interference with the order of confiscation made in exercise of the powers expressly conferred by the provisions of section 61-A and under the clear mandate contained in the provisions of section 55 of the Act. In the facts of this case, no other exceptional circumstances justifying the exercise of extraordinary powers of the court either under the provisions of section 61d or Articles 226 or 227 were canvassed to make a departure from the normal rule that the tools or vehicles used in committing any forest offence shall be liable to confiscation. In the facts of this case, no other exceptional circumstances justifying the exercise of extraordinary powers of the court either under the provisions of section 61d or Articles 226 or 227 were canvassed to make a departure from the normal rule that the tools or vehicles used in committing any forest offence shall be liable to confiscation. Such interpretation and application would be in consonance with the observations of the Supreme Court in State of West Bengal v. Sujit Kumar (supra) and the spirit and purpose of the stringent provisions of the Act. ( 10 ) THEREFORE, in absence of any evidence worth the name to even remotely suggest that the petitioner had taken any precautions against use of the vehicle in question for carrying forest produce in respect of which forest offence was committed, the mere contention that the petitioner was abroad when the vehicle was seized being of no avail, the impugned order of confiscation having become final since a decade under the provisions of sections 60 and 61f, and no appeal having been preferred, the petition is dismissed and Rule is discharged with no order as to costs.