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2017 DIGILAW 226 (MP)

KEDAR SINGH YADAV v. STATE OF M. P.

2017-02-10

S.A.DHARMADHIKARI

body2017
ORDER : S.A. DHARMADHIKARI, J. 1. Heard learned counsel for the parties. 2. In this petition under Article 227 of Constitution of India, the petitioner inter-alia challenges the order dated 30/09/2015 (Annexure P/1) passed by Xth Additional District Judge, Gwalior, order dated 31/05/2014 (Annexure P/2) passed by the Appellate Authority and the Conservator of Forest, Gwalior and order dated 31/12/2013 (Annexure P/3) passed by the Licensing Authority/Divisional Forest Officer, Forest Division, Morena under the provisions of M.P. Kashtha Chiran (Viniyaman) Adhiniyam, 1984 (herein after referred to as an 'Act') 3. The brief facts leading to filing of this case are that the petitioner is the owner of a Saw Mill. It was being operated on the basis of license granted by the Competent Authority. As per the prosecution story, on 14/02/2013, the Deputy Ranger alongwith his team inspected the Saw Mill. 10 pieces of Sesam and 5 pieces of Neem wood was found by the team. The petitioner was asked to produce the stock register/ record, but he could not provide the same. As a result, a case No. 22147/2003, was registered under the Act against the petitioner. 4. The case was examined by the Range Officer, Morena. The authority with an opinion to impose a cost of Rs. 10,000/-, referred the case to the Sub-Divisional Officer, Morena. The S.D.O. after examining the case found that the petitioner had earlier violated the provisions of Section 5 of the Act on two occasions, therefore, Case No. 22324/2008 dated 27/09/2006 and Case No. 22320/2010 dated 15/11/2007 were registered and the Licensing Authority on both the occasions imposed a fine of Rs. 10,000/- and disposed of the matters. The petitioner violated the provisions of the Act for the third time for possessing illegal stock of wood. A show cause notice was issued to the petitioner on 11/12/2013 as to why the Saw Mill be not confiscated and the license be not revoked, calling for the reply within 15 days. The reply was submitted by the petitioner on 26/12/2013 stating that initially the license was granted to the petitioner in 1995. No offence was committed during the period 1995 to 2005. During 2006 to 2008, the petitioner was unwell, therefore, his son operated the saw mill. During this period two offences were committed. Case was registered and the fine of Rs. 10,000/- each was levied which the petitioner had deposited. No offence was committed during the period 1995 to 2005. During 2006 to 2008, the petitioner was unwell, therefore, his son operated the saw mill. During this period two offences were committed. Case was registered and the fine of Rs. 10,000/- each was levied which the petitioner had deposited. The petitioner stated that in the present offence, during his absence from the Saw Mill, some farmers from the village had come in the night and had dumped the pieces of wood in the Saw Mill. The petitioner tried his level best to enquire about the owner of the wood but could not find out. The petitioner also apologized for the lapse with the assurance that the said offence will not take place in future. 5. After, considering the reply, the Licensing Authority confiscated the pieces of wood and revoked the licence by exercising the powers under Section 6 of the Act vide order dated 31.12.2013. 6. Being aggrieved by the order dated 31.12.2013, the petitioner preferred an appeal before the Appellate Authority under the Act with a prayer to compound the case as per the provisions of Section 18 of the Act. The Appellate Authority dismissed the appeal on the ground that possession of illegal stock of wood amounts to violation of Section 5 of the Act. This is the third offence committed by the petitioner. The petitioner is a habitual offender. The order dated 31.12.2013 passed by the Licensing Authority was upheld. 7. The petitioner again filed an appeal before the District Judge, Gwalior under section 12(4) of the Act. The appeal was also dismissed and the orders of both the authorities below were upheld. 8. Aggrieved by this order, the petitioner has filed the present writ petition. 9. Learned senior counsel Shri H.D. Gupta appearing for the petitioner submitted that the action of the respondents is in violation of Section 6 of the Act. The revocation of License is a penal consequence. No opportunity of being heard was provided thereby violating the principles of natural justice. Statements of the prosecution witnesses and the documents relied were not provided. No opportunity to cross examine the witnesses was afforded. It is further contended that the authorities below failed to consider the provisions of Section 6 of the Act which gives powers to the Licensing Authority to take action on reference or otherwise. Statements of the prosecution witnesses and the documents relied were not provided. No opportunity to cross examine the witnesses was afforded. It is further contended that the authorities below failed to consider the provisions of Section 6 of the Act which gives powers to the Licensing Authority to take action on reference or otherwise. This is a case of reference in which the Licensing Authority could have imposed a cost of Rs. 10,000/- rather than revoking the license, hence, the order is illegal because the same has been passed contrary to the reference itself. The counsel for the petitioner has placed reliance on the judgment of the co-ordinate Bench reported in 2003 (1) MPLJ 471, Dwarka Prasad Rai v. State of M.P. and others in support of his contentions. 10. On the other hand, the reply has been filed by the respondents. It is contended by the counsel for the respondents that earlier in 2006 and 2007, two cases were registered against the petitioner under the Act. The offences were compounded and the petitioner deposited the compounding fees of Rs. 10,000/- on each occasion. As per section 18 of the Act, if any person committed any offence previously under section 5 of the Act, he would not be entitled for any license for the purpose of the Saw Mill or renewal. The order passed by the competent authority is just and proper. The instant petition is misconceived, baseless and devoid of substance, therefore, is liable to be dismissed. 11. Heard the learned counsel for the parties. 12. For better appreciation of the contentions raised by learned senior counsel for the petitioner, it would be apposite to reproduce Section 6 of the Act. Section 6 reads as under:- "6. Grant, renewal, revocation or suspension of license : (1) An application for license under section 4 shall be in such form and shall be accompanied by such application fee and such security deposit for due observance of the conditions of the license, as may be prescribed. Section 6 reads as under:- "6. Grant, renewal, revocation or suspension of license : (1) An application for license under section 4 shall be in such form and shall be accompanied by such application fee and such security deposit for due observance of the conditions of the license, as may be prescribed. (2) On receipt of the application under subsection (1) the licensing officer may, after making such enquiry as it may deem fit :- (i) grant the license ; or (ii) by order in writing, for reasons in brief to be stated therein, refuse to grant the license; Provided that no order refusing to grant the license shall be passed, unless the applicant has been given a reasonable opportunity of being heard. (3) A license granted under sub section (2) shall be subject to the provisions of this Act and to such conditions as may be prescribed. (4) The provisions of this section shall apply to renewal of license as they apply to grant of license or refusal to grant a license. (5) If the licensing officer is satisfied, either on a reference made to it in this behalf or otherwise, that --- (a) the licensee has parted, in whole or in part with his control over the saw mill or has otherwise ceased to operate or own such saw mill; or (b) the licensee has, without reasonable cause, failed to comply with any of the conditions of the license or any direction lawfully given by the licensing office or has contravened any of the provisions of this Act or the rules made there under or ; (c) the licensee has, in the premises of the saw mill wood which he is not able to account for satisfactorily and consequently which is liable for confiscation under section 9; then without prejudice to any other penalty to which the licensee may be liable under this Act, the licensing officer may, after giving the licensee an opportunity of showing cause, revoke or suspend the license and forfeit the sum if any, or any portion thereof deposited as security for the due performance of the conditions subject to which the license has been granted. (6) A copy of every order issued under sub section (5) shall be given to the licensee." 13. (6) A copy of every order issued under sub section (5) shall be given to the licensee." 13. A plain reading of this Section depicts that if the Licensing Authority is satisfied, either on a reference made to it in this behalf, impose any other penalty to which the licensee may be liable, provided the licensee is granted an opportunity to show cause. 14. No doubt the material relied upon by the Licensing Authority was not supplied to the petitioner. The Licensing Authority also failed to exercise the power under Section 6 of the Act on a reference to impose cost of Rs. 10,000/-. The reply of the respondents also does not respond to the grounds raised by the petitioner in the petition. The first requirement was to supply the statements of all the prosecution witnesses with an opportunity to cross examine along with all the documents for initiating the action against the petitioner. The reply is silent on this point. 15. On the basis of aforesaid analysis a conclusion can be arrived at that the petitioner has been deprived of opportunity to defend properly. To enable a person to defend himself properly, it is necessary that the material on the basis of which opinion has been formed ought to have been supplied to the petitioner. That having not done in the present case and when such material had been relied upon by the Licensing Authority without supplying copy of the same to the petitioner, the order impugned is per-se-illegal. No enquiry was conducted by the Licensing Authority and had acted upon the material collected by the Range Officer without supplying copy of the same to the petitioner. 16. For the reasons mentioned herein above, the order dated 30/09/2015 (Annexure P/1) passed by Xth Additional District Judge, Gwalior, order dated 31/05/2014 (Annexure P/2) passed by the Appellate Authority and order dated 31/12/2013 (Annexure P/3) passed by the Licensing Authority under the Act are hereby quashed and set aside. The matter is remitted back to the Licensing Authority to proceed in the matter afresh in accordance with law. The respondents are directed to supply copy of statements and other relevant documents to the petitioner and thereafter proceed in the matter. The petitioner is directed to keep himself present before the Licensing Authority on 23/02/2017. The matter is remitted back to the Licensing Authority to proceed in the matter afresh in accordance with law. The respondents are directed to supply copy of statements and other relevant documents to the petitioner and thereafter proceed in the matter. The petitioner is directed to keep himself present before the Licensing Authority on 23/02/2017. The Licensing Authority is directed to decide the matter afresh in accordance with law within a period of three (3) months from the date of appearance made by the petitioner. No fresh notice is necessary to be issued to the petitioner. In case, the petitioner fails to turn up on the given date, it would be open to the Licensing Authority to proceed further in accordance with law. 17. With the aforesaid observations, this petition stands disposed of. No order as to costs.