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2017 DIGILAW 1204 (ORI)

State of Orissa v. Mahinder Singh

2017-10-27

B.R.SARANGI

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JUDGMENT : B.R. SARANGI, J. The petitioners, by means of this writ petition, seek to challenging the judgment dated 20.09.2003 passed by learned District Judge, Keonjhar in FAO No.19 of 2003 allowing the appeal by reversing the order dated 05.07.2002 passed by the Authorized Officer to confiscate the seized vehicle bearing registration no.OR-06-1535 and the manganese ore to the Government under Section 56 of the Orissa Forest Act, 1972. 2. The factual matrix of the case, in brief, is that in the night of 10.08.2002 the Forester of Joda Section of Champua Range, while performing night patrolling inside Baitarani reserve forest accompanied by other forest guards, detected a dumper bearing registration no.OR-06-1535 carrying manganese ore. So, they chased the dumper and seized it along with the manganese ore, though its driver managed to escape. Ultimately, the seized vehicle along with manganese ore, which was being transported without any authority of law, construing the same to be the forest produce, was produced before the Authorized Officer-cum-Assistant Conservator of Forests, Keonjhar Division, who initiated confiscation proceeding under Section 56 of the Orissa Forest Act, 1972. On being noticed, the opposite party appeared before the Authorized Officer and denied his involvement in the case. He specifically contended that transportation of manganese ore from the reserve forest did not amount to commission of forest offence either under the Orissa Forest Act, 1972 or Rules made thereunder. But the Authorized Officer, after giving due opportunity, by order dated 05.07.2002 coming to hold, that such action amounts to commission of forest offence under Section 27 of the Orissa Forest Act, 1972 and Rules 4 and 12 of the Orissa Timber and Other Forest Produce Transit Rules, 1980, directed for confiscation of seized dumper and manganese ore to the Government. Against the said order of the Authorized Officer, the opposite party preferred appeal (FAO No. 19 of 2003) under sub-section (2-e) of Section 56 of the Orissa Forest Act, 1972 before the learned District Judge, Keonjhar, who, relying upon the judgment of this Court in OJC Nos.15947 of 2001, 14011 of 2001 and 15948 of 2001, wherein it has been held that manganese ore does not come within the definition of forest produce, by judgment dated 20.09.2003 set aside the order of confiscation passed by the Authorized Officer. Hence this application. 3. Mr. Hence this application. 3. Mr. D.K. Pani, learned Additional Standing Counsel for the petitioners-State vehemently urged that manganese ore, being a “mineral” within the meaning of Section 2(g)(ii)(d), is a “forest produce” and the same having been excavated from the reserve forest area and transported therefrom without any valid permit, the opposite party has committed forest offence and is thus liable for punishment. As such, the seized vehicle including the forest produce is liable for confiscation under Section 56 of the Orissa forest Act, 1972. But, however, learned District Judge, Keonjhar has committed gross error by holding, that the manganese ore excavated and transported from reserve forest area is not a “forest produce”, and reversing the order of confiscation passed by the Authorized Officer, which is absolutely misconceived, and therefore, interference of this Court is warranted. 4. Although Mr. B.K. Kar, learned counsel along with his associates entered appearance for the opposite party, none was present at the time of hearing. Since it is a year old case, without giving further adjournment, the same is being disposed of finally on perusal of the records and upon hearing learned counsel for the petitioners. 5. In view of the factual matrix, as narrated above, the sole question which has cropped up for consideration by this Court is whether the manganese ore carried in the seized dumper, being excavated from reserve forest area, can be construed as “forest produce” and if so whether the seized dumper together with manganese ore is liable for confiscation under Section 56 of the Orissa Forest Act, 1972? 6. In order to have an effective adjudication of the case, it is worthwhile to go through Section 2(g)(ii)(d) of the Orissa Forest Act, 1972 which reads as follows: “2-Definitions: xxx xxxxxx (g) “forest produce” includes (ii) the following when found in or brought from a forest, that is to say- xxx xxx xxx (d) peat, surface soil, rock, sand and minerals (including limestone, laterite, mineral oils and all products of mines or quarries);” From the above quoted provisions, in which the meaning of “forest produce” has been literally defined, it is clear that when any peat, surface soil, rock, sand and minerals (including limestone, laterite, mineral oils and all products of mines or quarries) ‘found in’, or ‘brought from’ a forest, the same are to be considered as “forest produce”. No doubt, the manganese ore has not been specifically mentioned in the said provision, but fact remains whether the manganese ore comes within the meaning of ‘minerals’ as specified under Section 2(g)(ii)(d). If minerals includes manganese ore, then it is to be seen when it is ‘found in’ or ‘brought from’ a forest and can be construed as a “forest produce”. 7. As per the provisions contained in Section-2(jj) of the Mines Act (35 of 1952), “minerals” means all substances which can be obtained from the earth by mining, digging, drilling, dredging, hydraulicing, quarrying or by any other operation and includes mineral oils (which in turn include natural gas and petroleum). According to Section 2(c) of Atomic Energy Act (33 of 1962) “minerals” include all substances obtained or obtainable from the soil including (alluvium or rocks) by underground or surface working. 7.1 In Stonecraft Enterprises v. CIT, (1999) 3 SCC 343 , it has been held by the apex Court that the word ‘minerals’ occurring in Section 80-HHC 2b(ii) of Income-tax Act (43 of 1961) includes all minerals extracted from the earth including granite. 7.2 In V.P. Pithupihai v. Special Secretary, Govt. of T.N., (2003) 9 SCC 534 , it has been held by the apex Court that the word ‘mineral’ means ‘a naturally occurring, homogeneous substance or material formed by inorganic processes and having a characteristic set of physical properties, a definite range of chemical composition, and a molecular structure usually expressed in a crystalline forms. Any inorganic substance, as ore, a rock, or a fossil. It is also stated that a mineral as judicially defined would mean an inorganic substance found either on or in the earth which may be garnered and exploited for profit. 7.3 Section-3(d) of the Mines and Minerals (Regulations and Development) Act (67 of 1957) “minerals” includes all minerals except mineral oils. The first Schedule Part-C Clause-9 thereof deals with manganese ore. Similarly, Section 9 deals with royalties in respect of mining lease. Second Schedule Sl. No.24 deals with manganese ore while the royalty has been fixed by the authority concerned. 7.4 In view of such position, there is no iota of doubt that manganese ore comes within the meaning of minerals as defined in Section 3(a) of the Mines and Minerals (Regulation and Development) Act, 1957. Second Schedule Sl. No.24 deals with manganese ore while the royalty has been fixed by the authority concerned. 7.4 In view of such position, there is no iota of doubt that manganese ore comes within the meaning of minerals as defined in Section 3(a) of the Mines and Minerals (Regulation and Development) Act, 1957. Applying the meaning of “minerals”, as discussed above, to the meaning attached to Section 2(g)(ii)(d) of the Orissa Forest Act, 1972, it can be safely construed that ‘minerals’ includes manganese ore. 8. On a plain reading of the expressions ‘found in’ or ‘brought from’ mentioned in Clause-(4) of Section 2 of the Orissa Forest Act, 1972, there can hardly be any doubt that both of them indicate the forest to be the source or original depository of the forest produce in question. The term ‘found in’ a forest does not necessarily require an actual discovery of those items by a living person before those items can become forest-produce. The term ‘found in’ actually refers to things growing in a forest like timber trees, fuel trees, fruits, flowers, etc., or mineral deposits or stones existing in the forest. The distinctive feature is either the existence or the growth or deposit within the area of a forest and not their discovery by some living person. The idea underlying the expression ‘brought from’ is equally emphatic of the source of the thing so brought being within the area of a forest. The conveyance or transport involved in the idea of a thing being brought undoubtedly has its beginning in the forest by virtue of the use of the expression ‘from’. 8.1. In Kasi Prasad Sahu v. State of Orissa and another, AIR 1963 Orissa 24, while considering the provisions contained in Rules 2(4), 41, 43 and 85-A of the Orissa Timber and Forest Produce Transit Rules, 1958, the Division Bench of this Court held as follows: “On an interpretation of the expression “forest produce” as used in the Indian forest Act, there was an implied power in the government to regulate the transit of timber even if it may not the property of Government.” 8.2. As already stated, the materials available make it evident that the dumper bearing registration no.OR-06-1535 was seized when it was found loaded with manganese ore excavated from reserve forest. As already stated, the materials available make it evident that the dumper bearing registration no.OR-06-1535 was seized when it was found loaded with manganese ore excavated from reserve forest. As such, the manganese ore having been ‘brought from’ the forest, it becomes “forest produce” within the meaning of Section 2(g)(ii)(d) of the Orissa Forest Act, 1972. Furthermore, as the manganese ore was being transported without any valid permit/document and without any authority of law and more particularly, in contravention of provisions of Rules 2(4) and 12 of the Timber Transit Rules, 1980, the same amounts to committing forest offence. Section-27(3)(b) of the Act makes it clear that in a reserve forest quarries stone, burns lime or charcoal or collects, subjects to manufacturing process or removes any “forest produce” constituted a forest office. Since the manganese ore was seized in the reserve forest on a loaded vehicle it also attracts Section 73-A which provides that any person found in possession of any “forest produce” within the limits of any reserve forest shall, until the contrary is proved, be presumed to be guilty of removing or, as the case may be, transporting such forest produce from the reserve forest without authority. 9. Reliance placed on the order of this Court passed in Kashinath Behera v. Officer-in-Charge (O.J.C. Nos. 15947, 14011 and 15948 of 2001) cannot have any application to the present context as the opposite party has already been found to be guilty of committing forest offence by removing manganese ore which is a mineral within the meaning of Section 2(g)(ii)(d) of the Orissa Forest Act. Therefore, learned District Judge has committed gross error in allowing the appeal preferred by the opposite party vide order dated 20.09.2003 in F.A.O. No.19 of 2003. 10. In the aforesaid facts and circumstances, this Court is of the considered view that the order dated 20.09.2003 passed by the learned District Judge, Keonjhar in F.A.O. No.19 of 2003 cannot sustain in the eye of law. Accordingly, the same is hereby quashed and consequentially, the order dated 05.07.2002 passed by the Authorized Officer-cum-Assistant Conservator of Forests, Keonjhar Division, Keonjhar in O.R. Case No.21 Ch of 2002-2003 is restored. 11. The writ petition is accordingly allowed. No order as to cost.