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2011 DIGILAW 2256 (PAT)

Om Prakash Rajgaria v. State of Bihar

2011-11-14

AHSANUDDIN AMANULLAH

body2011
ORDER Heard Mr. Ranjan Kumar Jha, learned counsel for the petitioners and Mr. Rajeev Lochan, A.C. to G.A. 9 for the State. 2. The writ petition has been filed for quashing of the order dated 18.1.2003 passed by the Commissioner-cum-Secretary, Forest and Environment, Government of Bihar, Patna in Revision Case No. Van-Muk-(c) 1/2000. 3. By the said order, the respondent no.2 had set aside the appellate order dated 24.3.2011 passed by the Collector, Banka by which he had set aside the order of the Original authority i.e. the Divisional Forest Officer, Banka, who had ordered for confiscation of the Tractor and Tailor. The tractor bearing registration no. BR-10-840 and un-registered Tailor was found loaded with illegally seized 50 C.F.T. Base course stone pieces, 8 dhamas (Iron base kits) and one spade of the appellant u/s 52(3) of the Indian Forest (Bihar Amendment) Act, 1989, which was seized by the Ranger Officer, Baunsi in the District of Banka. This seizure was done in the presence of the Divisional Forest Officer, Banka, and A.C.F., Banka, Foresters and three Guards. 4. The allegation is that the tractor was used for carrying the said materials from plot no. 64 of Tola- Konikhar, Mouza- Kadhar, which is duly notified forest land area for which there is no mining lease. The original authority which had ordered the confiscation, had dealt with the matter in which it transpires that the petitioners had allegedly leased with regard to plot no. 32 (P), Tola- Jhilsi, Mauza- Kadhar, which was duly notified protected forest land. The confiscation order was passed on two grounds, firstly, that there should not have been any mining from those areas and even the lease granted, which was without prior sanction from Government of India, was ultravires and unlawful and secondly, lease deed had not been demarcated and even the adjoining lands have been recklessly exploited and all the debris has been thrown inside the forest destroying the soil and vegetation over an extensive area leading to soil erosion and destruction of flora and fauna. 5. 5. Learned counsel for the petitioners submits that the authority, which has passed the confiscation order, was himself a witness on the seizure list and as such he has no authority to act as adjudicating authority as he has become the judge in his own cause which is against the basic tenet of the rule of law and administration of justice and is also violative of the constitutional safeguards. 6. He further submits that though the Chalan was produced but the same was not taken into consideration only on the ground that the area was Forest area and even if any lease was granted, the same without having been done after obtaining prior permission of the Central Government was invalid. On the basis of such submissions learned counsel submits that the orders of the confiscating authority as well as the appellate authority and the Revisional Authority are illegal. He also submits that the confiscating authority was biased against the petitioners and for which a Complaint case was also filed before the C.J.M. alleging theft of the materials which are the subject matter of the present proceeding against the officials. 7. Learned counsel for the State on the other hand submits that the petitioners could not produce any valid documents to show that the said seized articles were legally mined Forest produce. He also submits that there is also no bar in the Indian Forest Act that officers cannot be witness to any seizure and that there be independent witnesses. He also submits that the trailer was un-registered and as such this was also proving of the fact that it was being used for illegal activities. 8. Learned State counsel supports the impugned order by lastly submitting that the conduct of the petitioners has also not been proper in the sense that in the past also vehicles had been seized and confiscated. He submits that in an over all view of the matter, the writ petition deserves to be dismissed. 9. Considering the rival contentions of the parties this Court finds that the objections raised by the petitioners with regard to the competency of the original authorities, the Divisional Forest Officer, Banka being a witness of the seizure and also adjudicating authority, are not tenable for the reason that no fault can be attributed on the part of the authority effecting such seizure while discharging his statutory duty. In the present case no cogent or believable grounds have been put forward to indicate that the officer concerned came with biased intention so as to disentitle him to adjudicate in the matter. 10. Coming to the other points, this Court finds that in the present case, there is a discussion with regard to mining lease but the original authority could not have been commented upon the same. The only course left to him was to recommend to the authority who had granted the mining lease to the concerned person if he felt that it warranted cancellation of the license. The other point, which this Court feels has not been taken care of by the department, relates to verifying whether the Forest produce was from the area for which there was mining lease in favour of the petitioners. It is very obvious that whenever any vehicle passes, it will be crossing many areas and which by itself would not lead to the presumption that the said product was not of the area for which mining had been allowed by proper lease. 11. In view of the discussions made hereinabove this Court finds that the authorities have not been able to discharge their duty or onus of proving their case that the tractor and trailer were liable to be confiscated under the Indian Forest Act. The orders impugned are accordingly set aside. 12. This order, however, will not preclude the said authority from taking action under the relevant laws for any illegal mining in which the petitioners may be found to be indulging including the fact that they have been operating the trailer without proper registration.