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2013 DIGILAW 454 (PAT)

Shree Prakash @ Pinku Singh v. State of Bihar

2013-04-05

AHSANUDDIN AMANULLAH

body2013
ORDER Heard Mr. S. B. K. Manglam, learned counsel for the petitioner and Mr. Rajesh Kumar Verma, learned SC-27 for the State. 2. The present writ application has been filed against the order dated 4th March, 2013 passed by the Divisional Forest Officer, Rohtas at Sasaram (respondent no. 4) by which the petitioner has been called upon to submit Bank guarantee of Rs. 2 lakhs of any Nationalized Bank for release of his Tipper (Dumper) bearing registration no. BR 24 G 2213. 3. Learned counsel for the petitioner submits that when the authority refused to release the said vehicle, he moved before the High Court earlier in C.W.J.C. No. 712 of 2013 in which by order dated 30th January, 2013 a direction was issued to the Divisional Forest Officer/concerned authority to consider the application of the petitioner for release of the vehicle in light of the guidelines laid down by the Hon’ble Apex Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat reported in (2002) 10 Supreme Court Cases 283. Learned counsel submits that pursuant to the same the authority had passed the order by which Rs. 2 lakhs, by way of Bank guarantee, has been sought to be furnished. This, according to him, is beyond jurisdiction and deserves to be set aside as according to him Section 53 of the Indian Forest Act, 1927 (hereinafter referred to as the ‘Act’), which is the power given to the authority for release of property, only requires the owner to execute a bond for the production of the property so released, if and when so required. Learned counsel has also placed reliance on an unreported decision in C.W.J.C. No. 13001 of 2010 (Bhupal Prasad Singh vs. The State of Bihar and Ors.) in which by order dated 30th November, 2010 a co-ordinate Bench of this Court has held that under Section 53 of the Act, the authority cannot ask for a Bank guarantee as the statutory provision requires a bond as security for production of the released vehicle during the proceedings. It is also his submission that while considering the application for release the authority could not have travelled beyond the provisions set out in Section 53 of the Act while allowing release of the vehicle. It is also his submission that while considering the application for release the authority could not have travelled beyond the provisions set out in Section 53 of the Act while allowing release of the vehicle. He, therefore, submits that the mere reference in the order of the High Court earlier to the case of Sunderbhai Ambalal Desai (supra) would not mean that the authority can ask for Bank guarantee. 4. Learned counsel for the State, on the other hand, contested the writ application and has taken a stand that in view of the earlier order of the Court dated 30th January, 2013, the authority was directed to consider the application of the petitioner for release of the vehicle in light of the guidelines laid down by the Hon’ble Apex Court in the case of Sunderbhai Ambalal Desai (supra). He specifically relies on paragraph no. 17 which is quoted here-in-below: “17. In our view, whatever be the situation, it is of no use to keep such seized vehicles at the police stations for a long period. It is for the Magistrate to pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of the said vehicles, if required at any point of time. This can be done pending hearing of applications for return of such vehicles.” 5. He accordingly submits that the Hon’ble Apex Court has given discretion to the authority to pass appropriate orders taking appropriate bond and guarantee as well as security for return of the said vehicle, if required at any point of time. Learned counsel, therefore, submits that the order impugned cannot be faulted. Learned counsel further submits that if contention of learned counsel for the petitioner is accepted then it would amount to reviewing and going behind the order dated 30th January, 2013. The authority had only acted in accordance with the observation of the High Court earlier and had imposed the condition of furnishing of Bank guarantee which cannot be construed as and equated to the authority on its own exercising its jurisdiction and acting as per Section 53 of the Act. The authority had only acted in accordance with the observation of the High Court earlier and had imposed the condition of furnishing of Bank guarantee which cannot be construed as and equated to the authority on its own exercising its jurisdiction and acting as per Section 53 of the Act. The High Court having directed for such consideration as per the order of the Hon’ble Apex Court in the case of Sunderbhai Ambalal Desai (supra) the impugned order cannot be faulted for the reason that the Hon’ble Apex Court in the said case has granted liberty to the authority to take Bank guarantee in addition to bond and security. 6. Upon considering the rival contentions, this Court does not dispute the stand of learned counsel for the petitioner that according to Section 53 of the Act the authority can only ask for execution of bond by the owner. The order of the Court in C.W.J.C. No. 13001 of 2010 is thus the correct exposition of the legal position. However, in the present case the fact cannot be lost sight of that the power under Section 53 of the Act is given to the authority to act on its own. The power when exercised by the authority cannot be subject to any transgression in the sense that the authority will not have jurisdiction or authority to order something which is not provided for under Section 53 of the Act, that is to say, that if it is decided by the authority itself to release the property, then the owner can only be called upon to execute a bond for production of the property so released, if and when so required. In the present case, it was the High Court, by order dated 30th January, 2013 in C.W.J.C. No. 712 of 2013 which had directed for consideration of release of the vehicle with the stipulation that the authority shall consider the said application for release of the vehicle in light of the order passed by the Hon’ble Apex Court in the case of Sunderbhai Ambalal Desai (supra). In the said case, the Hon’ble Apex Court has given the liberty to the concerned authority while releasing the vehicle to take appropriate bond and guarantee as well as security. In that view of the matter, the order impugned calling upon the petitioner to furnish Bank guarantee of Rs. In the said case, the Hon’ble Apex Court has given the liberty to the concerned authority while releasing the vehicle to take appropriate bond and guarantee as well as security. In that view of the matter, the order impugned calling upon the petitioner to furnish Bank guarantee of Rs. 2 lakhs of any Nationalized Bank for release of his vehicle cannot be faulted. 7. This Court is also conscious of the fact that Section 53 of the Act thus curtails the power of the authority to only direct for execution of bond and not for furnishing any Bank guarantee; but in view of the earlier order of the Court dated 30th January, 2013 the interference by this Court on the ground of the statutory provisions of Section 53 of the Act would amount to review of the order dated 30th January, 2013 in which there was a specific direction to consider the application for release in terms of the order passed by the Hon’ble Apex Court in the case of Sunderbhai Ambalal Desai (supra). If the contention of learned counsel for the petitioner is accepted that the authority cannot go beyond the scope of Section 53 of the Act then it would amount to hold that the observation and direction given by the High Court earlier in C.WJ.C. No. 712 of 2013 was superfluous and redundant which, according to this Court, would not be appropriate and rather erroneous in the facts and circumstances of the present case. The petitioner being satisfied with the earlier direction of this Court in C.W.J.C. No. 712 of 2013 for consideration of release of his vehicle in light of the guidelines laid by the Hon’ble Apex Court in the case of Sunderbhai Ambalal Desai (supra), it is not open for him now to assail the order impugned on the ground that the authority cannot go beyond Section 53 of the Act. The submissions of learned counsel for the petitioner are thus misconceived. 8. Accordingly, this Court does not find any merit in the writ application and the same stands dismissed. 9. It goes without saying that the order passed by the authority to furnish Bank guarantee, if complied with by the petitioner, the vehicle shall be released forthwith.