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2007 DIGILAW 1420 (PAT)

Shree Narayan Yadav v. State Of Bihar

2007-08-28

GHANSHYAM PRASAD

body2007
Judgment 1. This application has been filed for issuance of an appropriate writ under Sec. 226 of the Constitution of India in the nature of mandamus for release of truck confiscated in confiscation case no. 47/ 2005 as well as for directing the Respondent Nos. 2 and 3 to compromise the case no. 12(C)7/05 instituted under Sections 41 and 42 of the Indian Forest Act, 1927 pending in the Court of Chief Judicial Magistrate, Khagaria as also the confiscation case. 2. The facts of the case are as follows; On 21.11.2005 at about 4 A.M. the informant, Ranger-cum-Forester, Khagaria alongwith subordinates was on patrolling duty. In course of it, he seized a truck alongwith forest woods bearing truck no. W.B.-03/9493. The truck belonged to the petitioner Shree Narayan Yadav. Accordingly, the aforesaid complaint case was filed against the petitioner by the Respondent No. 3 under the Forest Act and the confiscation proceeding under Sec. 52(3) of Bihar Amendment Act (1990) being confiscation case no.12(C)7/05 was also initiated before the Divisional Forest Officer, Begusarai. The Divisional Forest Officer by his order dated 6.9.2006 (Annexure-2) confiscated the forest woods alongwith truck. 3. The admitted fact is that the applicant did not prefer either appeal or revision against the order of confiscation. He has directly approached this Court under Article 226 of the Constitution of India for issuance of an appropriate writ in the nature of mandamus for release of the truck and further direction to the respondents to compromise the case. 4. It is submitted by the learned counsel for the petitioner that exhausting alternative remedy before invoking jurisdiction under Article 226 of the Constitution is not always required. It does not oust the jurisdiction of the court. Where the order in question is apparently illegal and contrary to law, the Court cannot refuse to grant appropriate relief on the ground of non-exhausting of alternative remedy provided under the Act. For that he has relied upon two decisions of the Apex Court reported In (1985)3 SCC 267 (Ram and Shyam Company vs. State of Haryana and Others) and 1979(4) SCC 22 (Asst. Collector of Central Excise vs. Jalnson Hosiery Industries). 5. Before dealing with the above decisions it would be appropriate to deal with the decision of Apex Court reported in AIR 1969 SC 556 (M/s Bahuram Prakash Chandra Maheshwari vs. Antarim Zila Parishad). Collector of Central Excise vs. Jalnson Hosiery Industries). 5. Before dealing with the above decisions it would be appropriate to deal with the decision of Apex Court reported in AIR 1969 SC 556 (M/s Bahuram Prakash Chandra Maheshwari vs. Antarim Zila Parishad). The same question fell for consideration before the Apex Court. The apex court laid down rule as to under what circumstances the aggrieved party can directly approach High Court. In paragraph 3 it has been held as follows: " It is well established proposition of law that when an alternative and equally efficacious remedy is open to a litigant he should be required to puruse that remedy and not to invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of a statutory remedy does not affect the jurisdiction of the High Court to issue a writ. But, as observed by this Court in Rashid Ahmad vs. Municipal Board, Kairana, 1950 SCR 566 ( AIR 1950 SC 163 ),"the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs" and where such a remedy exists it will be a sound exercise of discretion to refuse to interfere in a writ petition unless there are good grounds therefor. But it should be remembered that the rule of exhaustion of statutory remedies before a writ is granted is a rule of self-imposed limitation, a rule of policy and discretion rather than a rule of law and the court may therefore in exceptional cases issue a writ such as a writ of certiorari notwithstanding the fact that the statutory remedies have not been exhausted. There are at least two well-recognised exceptions to the doctrine with regard to the exhaustion of statutory remedies. In the first place, It is wellsettled that where proceedings are taken before a Tribunal under a provision of law, which is ultra vires It is open to a party aggrieved thereby to move the High Court under Article 226 for issuing appropriate writs for quashing them on the ground that they are incompetent, without his being obliged to wait until those proceedings run their full course. (See the decisions of this Court in Carlk Still G.M.B.H. vs. State of Bihar, AIR 1961 SC 1615 and Bengal Immunity Co. (See the decisions of this Court in Carlk Still G.M.B.H. vs. State of Bihar, AIR 1961 SC 1615 and Bengal Immunity Co. Ltd. vs. State of Bihar, (1955)2 SCR 603 = ( AIR 1955 SC 661 ). In the second place, the doctrine has no application in a case where the impugned order has been made in violation of the principles of natural justice. (See 1953 SCR 595, 605=( AIR 1958 SC 86 , 93)" 6. The decision cited by the petitioner in (1979)4 SCC 25 (supra) does not help the petitioner. While reiterating the principle laid down in the above decision, in paragraph 1 it has been held as follows; "The Additional Solicitor General appearing for the petitioner, the Assistant Collector of Central Excise, complains that the order of the High Court under Article 226 of the Constitution is a wrong exercise of its jurisdiction because there is an alternative statutory remedy under the Central Excise Act for relief when goods are seized. It is correct to say that the High Court must have regard to the well established principles for the exercise of its writ jurisdiction and unless it is satisfied that the normal statutory remedy is likely to be too dilatory or difficult to give reasonably quick relief, it should be loath to act under Article 226. May be, in exceptional casesthe present one does not appear to be onethat extraordinary power may be exercised. So it is right to point out that the High Courts will be careful to be extremely circumspect in granting these reliefs especially during the pendency of criminal investigations. The investigation of a criminal offence is a very sensitive phase where the investigating authority has to collect evidence from all odd corners and anything that is likely to thward its course may inhibit the interests of justice. All that we need say here is that the High Courts will bear in mind the need for extreme reluctance when, during the investigation, any relief, interim or final, which has a tendency to slow down or otherwise hamper the investigation, is sought." 7. In another decision cited by the learned counsel for the petitioner reported in (1985)3 SCC 267 reliance has been placed upon the decision reported in AIR 1958 SC 86 (State of U.P. vs. Mohammad Nooh) which has also been considered and discussed in the case of Ram and Shyam Company (supra). In another decision cited by the learned counsel for the petitioner reported in (1985)3 SCC 267 reliance has been placed upon the decision reported in AIR 1958 SC 86 (State of U.P. vs. Mohammad Nooh) which has also been considered and discussed in the case of Ram and Shyam Company (supra). 8. Thus, from the above decisions of the Apex Court it is quite clear that the normal rule is that when alternative and ]ually efficacious remedy is provided under the Act, the aggrieved party should be required to pursue that remedy and not to invoke the special jurisdiction under Article 226 of the Constitution of India. In such situation, the High Court should normally refuse to interfere in the writ petition unless there are good and exceptional grounds therefor. Two well recognised exceptional grounds are; (1) where the proceedings are taken before the court under the provision which is ultra vires, and (2) that the impugned order has been made in violation of principles of natural justice. 9. In the present case none of the two grounds is shown for invoking the jurisdiction under Article 226 of the Constitution of India. Annexure-1 would go to show that the truck in question loaded with forest woods of different size was seized by the Ranger-cum-forester under Section 52 of the Indian Forest Act and a report with regard of the same was given to the Chief Judicial Magistrate and thereafter the Divisional Forest Officer in exercise of jurisdiction under Sec. 52(3) of Bihar Act, 1990 confiscated the truck with forest woods by order dated 6.9.2006 (annexure-2) passed in Confiscation Case No. 47/2005. It appears that the order in question was passed after hearing both parties. There is no apparent violation of principles of natural justice. There is no submission that the law under which the truck in question was confiscated was ultra vires of any provision of Constitution of India. Sec. 52A of Bihar Act 9 of 1990 which came into force with effect from 10.9.1990 provides forum for appeal before the District Magistrate against the order of confiscation and Sec. 52(B) provides forum for revision before the Secretary of Forest Department against the order of appellate authority. The petitioner has not exhausted remedy before the aforesaid forum. Thus, apparently this writ application is not maintainable. 10. The petitioner has not exhausted remedy before the aforesaid forum. Thus, apparently this writ application is not maintainable. 10. Two other decisions of Patna High Court have been cited by the learned counsel for the petitioner which have been reported in 1996(1) PUR 863 (Anil Kumar Gupta vs. State of Bihar and Ors.) and 2001(1) PLJR 804 (Smt. Renu Kumari vs. The State of Bihar and Ors.). Those decisions are not in favour of the petitioner. In both the decisions the aggrieved party invoked the jurisdiction of the High Court under Article 226 of the Constitution of India after exhausting all alternative remedies provided under Sec. 52(A) and B(5) of the Bihar Amendment of the Indian Forest Act (Bihar Act 9 of 1990). 11. Thus, having regard to the facts and circumstances of the case I find no merit in this application. Accordingly, this application is hereby rejected. 12. However, the petitioner is at liberty to file appeal against the impugned order and also to raise the matter of compromise before the appropriate forum who will consider his prayer and pass order in accordance with law.