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Madhya Pradesh High Court · body

2015 DIGILAW 816 (MP)

Chandresh Dhakad v. State of M. P.

2015-08-07

ROHIT ARYA

body2015
ORDER : Rohit Arya, J. By this petition under Article 226 of the Constitution of India, petitioner has challenged the order passed by the Special Judge (Atrocities) and Additional Sessions Judge, Gwalior dismissing the Revision Petition No. 63/2015 by order dated 1-4-2015 passed under section 52B of the Indian Forest (Madhya Pradesh Amendment Adhiniyam, 1983) Act, 1927 (hereinafter referred to as the Act of 1927). By the impugned order, the order passed by the appellate authority in Appeal No. 03/2015 under section 52A of the Act of 1927 dated 29-1-2015 and the order dated 11-11-2014 passed by the Prescribed Authority in Forest Case No. 4927/2002 have been confirmed. Facts relevant and necessary for disposal of this writ petition are in narrow compass: On information received on 11-11-2014, Vishwanath Sharma, Sub Forest Ranger, Karhai along with other staff at about 11.30 p.m. visited the spot and found that in compartment No. 347, illegal excavation/mining of earth was going on through J.C.B. Machine. On seeing the forest staff, the driver and others fled away. The location was traced through G.P.S., reading. As there was no registration number of the vehicle, therefore, while registering the offence at Crime No. 4927/2002, the engine No. H00043131 and chassis No. 1840649 were recorded. Panchnama was prepared, the machine was seized and the same was kept in the custody of Mohana Range Campus. By DO letter No. 1217 dated 12-11-2014 under sub-section (2) of section 52, the Forest Ranger, Ghatigaon sent the information of seizure to the Prescribed Authority and the Deputy Divisional Forest Officer, Ghatigaon for providing the information as regards the initiation of confiscation proceedings to the Chief Judicial Magistrate, District Gwalior. The Authorized Officer upon receipt of the report of seizure, immediately has initiated the confiscation proceedings as provided under section 52(3) of the Act of 1927. Thereafter, the Authorized Officer sent an intimation in the prescribed form about initiation of proceedings for confiscation to the Chief Judicial Magistrate vide DO letter No. 1172 dated 12-11-2014 under section 52(4)(a) of the Act of 1927. Thereafter, as required under section 52(4)(b) and 52(5) of the Act, of 1927, a notice vide No. 1258 dated 1-12-2014 was issued to the owner of the seized machine, Chandra Dhakad s/o Maniram Resident of village Sahsari, Ghatigaon, District Gwalior calling upon him to show cause as to why the aforesaid machine be not confiscated. Fifteen days' time was granted. Thereafter, as required under section 52(4)(b) and 52(5) of the Act, of 1927, a notice vide No. 1258 dated 1-12-2014 was issued to the owner of the seized machine, Chandra Dhakad s/o Maniram Resident of village Sahsari, Ghatigaon, District Gwalior calling upon him to show cause as to why the aforesaid machine be not confiscated. Fifteen days' time was granted. The owner of the machine/petitioner in response thereto through an advocate, Shri Pankaj Jain presented the case before the Prescribed Authority. In the process of hearing, the evidence was recorded. The principles of natural justice were duly observed. Thereafter, upon evaluation of the material placed before the Authority, an order of confiscation was passed on 7-1-2015 by the Prescribed Authority. 2. Being aggrieved thereby, an appeal was preferred under section 52A of the Act of 1927. The appeal has been dismissed by order dated 29-1-2015 in Appeal No. 03/2015. As a consequence thereof, a revision petition was preferred before the Additional Sessions Judge under section 52B of the Act of 1927 and the same was dismissed by the impugned order. 3. Before proceeding further, it is relevant to reiterate the law that an order passed by the revisional Court under section 52B of the Act of 1927 is final and not open to be questioned before any Court, notwithstanding anything contrary contained in the Code of Criminal Procedure, 1973 as contemplated under section 52B(5) of the Act of 1927. 4. Section 52C of the Act of 1927 (Madhya Pradesh Amendment) contains the bar to jurisdiction of Courts, under certain circumstances inter alia provides that on receipt of information under sub-section (4) of section 52 about initiation of the proceeding for confiscation of the property by the Magistrate having jurisdiction to try the offence on account of which the seizure of the property which is subject-matter of confiscation, has been made, no Court, tribunal or authority (other than the authorized officers, appellate authority and the Court of Sessions referred to in sections 52, 52-A and 52B ), shall have jurisdiction to make order with regard to possession, delivery, disposal or distribution of the property in regard to which proceedings for confiscation are initiated under section 52, notwithstanding anything contrary contained in this Act or any other law for the time being in force. 5. 5. As such, if the order of confiscation has been affirmed by the appellate authority and the revisional authority, i.e., Chief Judicial Magistrate trying the offence shall have no jurisdiction to deal with confiscation. There is statutory bar. 6. Upon perusal of the order of confiscation, appellate order and the revisional order, it appears that petitioner in his defence has raised the contention that the confiscated J.C.B., machine was engaged in the excavation of earth in the revenue land of the ownership and possession of Ghanshyam Dhakad admeasuring 2.017 hectare in Survey No. 366/Min.-2 situated in village Dadori, Ummedgarh, out of the total land of the said survey number admeasuring 29 bigha 8 biswa (6.069 hectare) and in support thereof, he has submitted kistiband katoni. As such, the excavation of earth was being carried out in the revenue land and not in the forest land. It further appears, the defence of the petitioner is that the excavation of earth was being carried out for the purpose of construction of pond under the Balram Talab Yojana. As such, no forest offence could be said to have been committed by the act of excavation of earth through the J.C.B. Machine. The Authorities and the revisional Court have dealt with the aforesaid contention with reference to the documentary evidence on record. It has been found that the entire area admeasuring 29 bigha 8 biswa (6.069 hectare) falling in Survey No. 366 is protected forest land as evident from Notification No. 1101XF/203(54) Gwalior dated 1-3-1955 issued under section 29 of the Indian Forest Act, 1927 and further notification under section 4 of the said Act vide Notification dated 14-3-1969. Both the aforesaid notifications were on record of the Authorities and for ready reference, they are on record in this case as Annexure R/1 and Annexure R/2 filed with the counter-affidavit by the State. As such, authorities have concurrently held that excavation was carried out in protected forest land. That apart, there is no documentary evidence on record in support of the defence of the petitioner that for construction of pond, the excavation of earth was being carried out. The revisional Court has also taken note of the decision of the competent authority dated 12-8-2014 on the representation of the petitioner in terms of the order passed by this Court in W.P. No. 4260/2014. Accordingly, the aforesaid plea in defence has also been rejected. 7. The revisional Court has also taken note of the decision of the competent authority dated 12-8-2014 on the representation of the petitioner in terms of the order passed by this Court in W.P. No. 4260/2014. Accordingly, the aforesaid plea in defence has also been rejected. 7. The confiscating authority and the appellate authority have critically evaluated the oral and documentary evidence on record while justifying the confiscation proceedings. The revisional authority has examined the orders passed by the authorities in a reasonable manner bearing in mind its revisional jurisdiction under section 52C of the Act of 1927 and consequently upheld the order of confiscation. 8. The scope of judicial review under Articles 226 and 227 of the Constitution of India is limited in nature, particularly; in the facts and circumstances of the case in hand. This Court is conscious of the fact that there is a statutory bar created under section 52C of the Act of 1927 (Madhya Pradesh Amendment) in the matter of possession, delivery, disposal or distribution of the property in regard to which the proceedings for confiscation are initiated under section 52, notwithstanding anything to the contrary contained in the Forest Act or any other law for the time being in force. The order of confiscation does not suffer from jurisdictional error or illegality or perversity. Both the authorities have exercised the powers with due advertence to the entire material placed on record. Likewise, the revisional Court has upheld the same after due examination of the material on record. This Court in exercise of the powers under Article 226 and 227 of the Constitution of India, even otherwise, cannot substitute its opinion for that of the fact finding authority, appellate authority and the revisional Court. That apart, detailed notifications, Annexures R/1 and R/2 are on record reflecting the fact that the entire land of Survey No. 366 is protected forest area. No claim of ownership and possession can be made by any private person over the protected forest area. Under such circumstances, the confiscation of J.C.B., machine with engine No. H00043131 and chasis No. 1840649 is found to be in order and no interference is warranted by this Court. 9. Learned counsel for the petitioner, at last cited the order passed by this Court reported in Premdas Vs. Under such circumstances, the confiscation of J.C.B., machine with engine No. H00043131 and chasis No. 1840649 is found to be in order and no interference is warranted by this Court. 9. Learned counsel for the petitioner, at last cited the order passed by this Court reported in Premdas Vs. State of M.P. and Others, (2013) 2 MPLJ 218 in context of the powers of the trial Judge under section 451 of the Code of Criminal Procedure, 1973 to submit that once a criminal case was pending, confiscation proceedings could not be held and finalised. The aforesaid order is based on Full Bench decision of this Court reported in Madhukar Rao Vs. State of M.P. and Others, (2000) 1 MPLJ 289 in fact, the aforesaid order in the case of Madhukar Rao (supra) is not in the context of the Indian Forest Act, 1927, particularly; sections 52-A , 52B and 52C thereof as rightly observed by this Court in its judgment reported in Ramniwas Vs. Game Range Chambal Sanctuary, Morena, (2012) ILR (MP) 811 wherein in paragraph 19, it has been found that the Full Bench in the case of Madhukar Rao (supra) dealt with different question in the context of the provisions of the Wild Life (Protection) Act, 1972. Hence, in the opinion of this Court, the case cited by the learned counsel for the petitioner is of no assistance to the petitioner. Writ petition sans merit and is hereby dismissed.