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2012 DIGILAW 1491 (PAT)

Diljan v. State of Bihar

2012-10-19

ASHWANI KUMAR SINGH

body2012
ORDER The petitioner has invoked the writ jurisdiction of this Court with following prayers:– (i) For issuance of a writ in the nature of certiorari for quashing the order no.131 issued by memo no.1689 dated 22.9.2008, passed by the Authorised Officer-cum-Divisional Forest Officer, Kaimur Forest Division, Babhua as contained in annexure-5 to the writ petition by which the truck bearing registration no.UP-65H 3738 and the Kendu leaves loaded on the said truck have been confiscated under the provisions of section 52 of the Indian Forest Act, 1927. (ii) For issuance of a writ in the nature of certiorari for quashing the order dated 24.6.2009 passed in Confiscation Appeal Case No.1 of 2009-2010 by Collector-cum-District Magistrate, Kaimur as contained in annexure-6 to the writ petition by which the appeal filed by the petitioner against the order dated 22.9.2008 passed by the Authorised Officer-cum-Divisional Forest Officer, Kaimur Forest Division, Bhabua has been dismissed. (iii) For issuance of a writ in the nature of mandamus directing the respondents to release the truck bearing registration no.UP-65H 3738 of the petitioner in movable condition. (iv) To direct the respondents to compensate the petitioner adequately for the arbitrary action of unauthorized detention of the aforesaid truck which put the petitioner in loss. 2. Learned counsel for the petitioner submits that on 18.9.2007 at about 3 a.m. while the petitioner was carrying Kendu leaves on his truck bearing registration no.UP-65H 3738, it was intercepted by a team headed by the Assistant Sub Inspector of Police at Chandni Chowk, Bhabua Station Road, Mohania falling under Mohania Police Station. An F.I.R. was instituted against the petitioner and others for the offence under sections 414 of the Indian Penal Code and 33 of the Indian Forest Act, 1927 (in short “the Forest Act, 1927”). 3. It is contended that the truck and the Kendu leaves loaded on it were seized by the police and a seizure list was handed over to the petitioner in that regard. The police, on conclusion of investigation, submitted charge-sheet in the case on 16.11.2007. 4. A separate proceeding was initiated for confiscation of the truck and the Kendu leaves in the court of the Authorised Officer-cum-Divisional Forest Officer, Kaimur Forest Division, Bhabua. The Authorised Officer, by his order dated 22.9.2008, confiscated the truck and the Kendu leaves loaded therein under section 52 of the Forest Act, 1927. 4. A separate proceeding was initiated for confiscation of the truck and the Kendu leaves in the court of the Authorised Officer-cum-Divisional Forest Officer, Kaimur Forest Division, Bhabua. The Authorised Officer, by his order dated 22.9.2008, confiscated the truck and the Kendu leaves loaded therein under section 52 of the Forest Act, 1927. Being dissatisfied with the order dated 22.9.2008 of the Authorised Officer, the petitioner preferred an appeal in the court of the Collector-cum-District Magistrate, Kaimur which was registered as Confiscation Appeal Case No.1 of 2009-2010. The appellate authority also dismissed the appeal by his order dated 24.6.2009 and upheld the order of the Authorised Officer-cum-Divisional Forest Officer, Kaimur Forest Division, Bhabua. 5. Learned counsel appearing on behalf of the petitioner submits that the State Legislature in order to make the provision of control of trade of Kendu leaves grown in the State of Bihar has enacted the Bihar Kendu Leaves (Control of Trade) Act, 1973 (in short “the Kendu Leaves Act”). According to him section 21 of the Kendu Leaves Act specifically provides that nothing contained in the Forest Act, 1927 shall apply to Kendu leaves. He submits that the general provisions prescribed under the Forest Act, 1927 for regulating the collection and transaction of the forest produce will not apply to the Kendu leaves. In this regard learned counsel relies upon a decision of this court rendered in case of Smt. Chandrawati Devi Vs. State of Bihar and others since reported in 1992(1) PLJR 247 in which dealing with the similar circumstance a division Bench of this court held that transportation of Kendu leaves is covered by a separate enactment, namely, The Kendu Leaves Act and, as such, violation in respect of transportation of Kendu leaves has to be looked within the special enactment and not under the Forest Act, 1927 and, as such, an offence in respect of Kendu leaves cannot be termed as forest offence under the Forest Act, 1927 and when there is no provision of confiscation of vehicle under the Kendu Leaves Act then the provisions of the Forest Act, 1927 are not applicable. 6. Learned counsel submits that in view of section 21 of the Kendu Leaves Act and the division Bench Judgment of this court rendered in Smt. Chandrawati Devi (supra), the orders of the Authorised Officer and the Appellate Authority are fit to be quashed. 7. 6. Learned counsel submits that in view of section 21 of the Kendu Leaves Act and the division Bench Judgment of this court rendered in Smt. Chandrawati Devi (supra), the orders of the Authorised Officer and the Appellate Authority are fit to be quashed. 7. Learned counsel for the petitioner submits that Kendu leaves being not the product of forest alone and can be grown by the individuals in their raiyati land also and when a special enactment has been made to control the trade of Kendu leaves which is a self sufficient Act, then the application of the Forest Act, 1927 is redundant in view of section 21 of the Kendu Leaves Act. 8. On the other hand, learned counsel appearing on behalf of the State submits that when the truck loaded with Kendu leaves was intercepted by the police, the petitioner failed to produce any paper including transit permit for transportation of Kendu leaves. The Kendu leaves were illegally collected from the protected forest area and were being transported in full knowledge of the petitioner. The Divisional Forest Officer, Kaimur Forest Division being authorized officer under the Forest Act, 1927 initiated Confiscation Case No.35 of 2007 under section 52 of the Forest Act, 1927 (Bihar Amendment Act 9 of 1989) on 4.12.2007 and an intimation under sub section 4(a) of section 52 of the Forest Act, 1927 was sent to the learned Chief Judicial Magistrate, Kaimur at Bhabua on 4.12.2007 itself. The petitioner was called upon to submit reply to the show cause issued against him in the confiscation case. He neither appeared before the Authorised Officer-cum-Divisional Forest Officer nor filed any reply to the show cause notice. The Authorised Officer, on being satisfied, by a reasoned and speaking order confiscated the vehicle in question and communicated the order vide memo no. 1689 dated 22.9.2008. 9. Learned counsel for the State further submits that the petitioner filed an appeal being Confiscation Appeal Case No.1 of 2009-2010 in the court of District Magistrate, Kamiur at Bhabua under section 52A of the Forest Act, 1927 (Bihar Amendment No.9 of 1989). The Appellate Authority, after hearing the parties at length, upheld and confirmed the confiscation order passed by the Authorised Officer-cum-Divisional Forest Officer, Kaimur at Bhabua by a speaking order on 24.6.2009 and dismissed the appeal filed on behalf of the petitioner. The Appellate Authority, after hearing the parties at length, upheld and confirmed the confiscation order passed by the Authorised Officer-cum-Divisional Forest Officer, Kaimur at Bhabua by a speaking order on 24.6.2009 and dismissed the appeal filed on behalf of the petitioner. The petitioner did not file any revision under section 52B of the Forest Act, 1927 in the court of Secretary Forest and Environment, Government of Bihar, against the orders passed by the Authorised Officer and the Appellate Authority. According to him, instead of availing the statutory remedy of revision, the petitioner chose to file the present writ petition before this court almost two years after the Appellate Authority had dismissed the appeal filed by the petitioner. 10. Having considered the rival submissions made on behalf of the parties, I am of the view that the prayer made in the writ petition cannot be allowed for two reasons. Firstly, because the petitioner did not opt to seek the statutory remedy of revision against the appellate order and challenged the appellate order before this court belatedly after a lapse of almost two years since the date of order. It is well settled that where statutory remedies are available, a petition under Articles 226 of the Constitution should not be entertained, unless the statutory remedies are ill suited to meet the demand of extraordinary situation. In a proceeding under Articles 226 and 227 of the Constitution this court cannot sit in appeal or revision over the findings recorded by the Authorised Officer and the Appellate Authority. There is no manifest error or illegality in the orders impugned passed by the Authorised Officer as well as the Appellate Authority. Secondly, because the Hon’ble Supreme Court in case of State of Madhya Pradesh Vs. Swaropchandra since reported in AIR 1997 SC 301 , in almost similar circumstance considered the applicability of the Indian Forest Act, 1927 in respect of an offence under the Special Enactment. In that case in the State of Madhya Pradesh, a vehicle was confiscated for offence under the M.P. Van Upaj (Vyapar Viniyaman) Adhiniyam (in short “the M.P.Act”) but there was no specific provision of confiscation of the vehicle under the Special Act. The division Bench of the Madhya Pradesh High Court held that confiscation of the vehicle being not governed by Special Enactment is bad in the eye of law. The division Bench of the Madhya Pradesh High Court held that confiscation of the vehicle being not governed by Special Enactment is bad in the eye of law. The State of Madhya Pradesh challenged the order of the division Bench before the Hon’ble Supreme Court. The Hon’ble Supreme Court in the said judgment held that even if a Special Act is made with a view to prevent illicit transportation of basically the forest produce or the specified forest produce and have been provided for under the Special Enactment then it cannot be said that the legislature intended to exclude the confiscation of the container i.e. vehicle or receptacles or boats, carts or tools used for carriage of the specified forest produce. It has been held by the Apex Court that the Forest Act, 1927 with its Special Enactment shall always occupy the field in respect of confiscation of vehicle even if there is no specific provisions under the Special Enactment because the Special Enactment, when silent regarding the confiscation of container then the Forest Act, 1927 with its State Amendment would definitely come into play to occupy the field in that jurisdiction. 11. In the M.Ps. Special Enactment, as mentioned above, there is also provision like that of section 21 of the Kendu Leaves Act regarding exclusion of applicability of the Forest Act, 1927. That section is section 22 under the M.P.Act. Section 22 of the M.P.Act is exactly the same as that of Section 21 of the Kendu Leaves Act. While hearing the appeal filed by Madhya Pradesh in the judgment, referred to above, the Hon’ble Supreme Court held as follows:– “In our view, the High Court was clearly in error in reaching the conclusion that there is no such provision under the Forest Act. It is seen that the Act occupies the field in respect of the specified matters enumerated thereunder. In view of the fact that the Forest Act, as amended under the State Amendment Act 9 of 1965 has already occupied the field for confiscation of the vehicles etc. it is not necessary, again to provide the same procedure under the Act. In this behalf it is relevant to look into the procedures provided in the Amendment Act 9 of 1965. Section 52 deals with the seizure of the property liable to confiscation and procedure thereunder. Section 52-A deals with the appeal against orders of confiscation. it is not necessary, again to provide the same procedure under the Act. In this behalf it is relevant to look into the procedures provided in the Amendment Act 9 of 1965. Section 52 deals with the seizure of the property liable to confiscation and procedure thereunder. Section 52-A deals with the appeal against orders of confiscation. Section 52-B deals with revision before court of Sessions against order of appellate authority. Section 53 gives power to the Forest Officer to release the seized property under certain circumstances enumerated thereunder. Thus, it could be seen that Ss.52 and 52A, as amended by the State Amendment Act 9 of 1975, having occupied the field in respect of the confiscation of vehicles etc. and the procedure thereunder, the Legislature had not expressly provided such procedure again for confiscation under the Act. The High Court, therefore, was clearly in error in coming to the conclusion that by operation of S.22 of the Act, the vehicle used for transportation of the specific forest produce in contravention of the Act has excluded the applicability of the provisions of the Forest Act, as amended by Act 9 of 1965 in respect of vehicles etc. It was confined only to specified forest produce.” 12. In view of the law laid down by the Hon’ble Supreme Court, the division Bench judgment of this court relied upon by the learned counsel appearing on behalf of the petitioner is of no help to the petitioner as like the division Bench judgment of this court the division Bench of Madhya Pradesh High Court had also held the same view but the Hon’ble Supreme Court set aside the judgment of the division Bench of Madhya Pradesh High Court as indicated hereinabove. 13. Thus, in my view, even if the Kendu Leaves Act is a self sufficient Act then also all provisions of the Forest Act, 1927 cannot be held redundant. 14. In view of the judgment of the Hon’ble Supreme Court in State of Madhya Pradesh Vs. Swaropchandra (supra) confiscation is permissible under the Forest Act, 1927, even if seizure is made under the Kendu Leaves Act regarding the vehicle containing the Kendu leaves. 15. In the result, I do not find any merit in the present writ petition. It is dismissed, accordingly.