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2017 DIGILAW 298 (ORI)

State of Orissa v. Jyotshna Mohapatra

2017-03-17

S.PUJAHARI

body2017
ORDER 17.03.2017 Heard the learned counsel for the petitioner State and the learned counsel for the opposite party. 2. The petitioner-State has challenged in this writ petition an order of the learned District Judge, Cuttack passed in F.A.O. No. 15 of 2008 setting aside an order of confiscation passed by the Licensing Officer-cum-Divisional Forest Officer, Athgarh in O.R. Case No. 20C of 2001-02 under the Orissa Saw Mills and Saw Pits (Control) Act, 1991 (for short “the Act”) on the ground that the opposite party having not running a saw mill/saw pit, the confiscation proceeding initiated against the seized woods and implements for violation of Section 13(2) of the Act by the licensing authority was without jurisdiction, so also vitiated for noncompliance of the mandatory provisions of the enquiry under Rule-4 of the Orissa Forest (Detection, Enquiry and Disposal of Forest Offences) Rule, 1980 (hereinafter referred to as “the Rules”) before prosecution launched as held in the case of Rabi Narayan Sahu –Vrs. – Range Officer of Sorada Range and Others, 2008 (II) OLR 592 . 3. It appears form the record that Forest staff of Cuttack Range Divisional Mobile Party and Police personnel raided the carpentry shop of the opposite party wherefrom huge quantity of furniture and sawn sizes were seized and thereafter a prosecution was lodged by the Licensing Officer under the Act indicating therein that the opposite party was running a saw pit without license inasmuch as he was carrying on sawing operations inside the premises and confiscated the stock seized. An appeal being carried out against the aforesaid order before the learned District Judge, Cuttack by the petitioner, the learned District Judge, Cuttack rendered finding as aforesaid and quashed the prosecution overruling the objection of the counsel for the State that the appeal before the District Judge was not maintainable on the ground that the carpentry unit of the opposite party is not coming under the purview of the Act and also the statutory mandate for conducting the enquiry by a Range Officer has not been made by the Range Officer as held in the case of Rabi Narayan Sahu (supra), and others. 4. 4. The aforesaid order has been assailed in this writ petition, on the ground that the order of the District Judge, Cuttack is illegal and arbitrary and liable to be set-aside inasmuch as when the opposite party was having a carpentry business and operating the saw pit without license, his stock has been rightly confiscated by the Licensing Officer. Against the aforesaid order, an appeal being maintainable before the Conservator of Forests which was not done and the opposite party directly approached the Court of the District Judge, Cuttack the learned District Judge, Cuttack should not have entertained the appeal of the opposite party and passed the impugned order, hence such order of the learned District Judge, Cuttack cannot be sustained. 5. It is also submitted by the learned counsel for the petitioner-State that the impugned order being contrary to the facts and law, the same cannot be sustained. The evidence on record discloses the opposite party was running a saw pit by doing sawing operation though in a carpentry shop, wherefrom some furniture and wooden sizes were seized along with the saw. The District Judge as such could not have held that the opposite party’s carpentry shop is not covered under the Act and as such confiscation order passed by the authority under the Act is unsustainable. The act complained of being squarely covered under the Act, the impugned order was bad. The confiscation order has been quashed on the ground of non-compliance of the statutory mandate of conducting the enquiry by the Range Officer under the Rules placing reliance on the decision of this Court in the case Rabi Narayan Sahu (supra) which is no more the good law in view of the decision of the Full Bench rendered in case of Anatha Bandhu Mandal Vs. State of Odisha reported in 2015 (II) OLR 1 and as such the impugned order of the learned District Judge, Cuttack cannot be sustained. 6. State of Odisha reported in 2015 (II) OLR 1 and as such the impugned order of the learned District Judge, Cuttack cannot be sustained. 6. Learned counsel for the opposite party though does not dispute that the interference of the appellate Court dispute that the interference of the appellate Court with the order of confiscation on the ground of non-compliance of the mandatory provision of conducting enquiry under the Rule 4 of the Rules as held in the case Rabi Narayan Sahu (supra) in view of Full Bench decision in the case of Anatha Bandhu Mandal (supra), but submits that the evidence on record being clearly indicating the fact that the petitioner was running a carpentry shop wherefrom some furniture and wooden sizes and a saw were though seized without any saw pit in existence, the same is not covered under the Act inasmuch as the ordinary operations of carpentry being carried out, the Act has no application to the said establishment in view of Section 25 of the Act. 7. The initiation of the confiscation proceeding in the absence of sawing operation in a saw pit under the Act was misconceived and, as such, the Licensing Officer being a creature of the statute, should not have proceeded under the Act. Hence, the confiscation proceeding was misconceived. 8. No doubt, against the aforesaid order, a suo-motu proceeding as well as a proceeding on approach of the party is maintainable before the Conservator of Forests. But, those being not the nature of an appeal but in nature of an re-enquiry and against an order of confiscation and appeal being provided to the District Judge, which was filed without seeking re-examination of the matter by the Conservator of Forests, the exercise of jurisdiction by the learned District Judge, Cuttack cannot be said to be impermissible in the eye of law. Advancing the aforesaid submissions, it is submitted that the impugned order of the learned District Judge, Cuttack suffers form no illegality and infirmity and, as such, this writ petition at the instance of the State is devoid of merit and is liable to be dismissed. 9. Advancing the aforesaid submissions, it is submitted that the impugned order of the learned District Judge, Cuttack suffers form no illegality and infirmity and, as such, this writ petition at the instance of the State is devoid of merit and is liable to be dismissed. 9. On perusal of the materials on record, it would go to show that the Licensing Officer under the Act is proceeded under the premises that the opposite party was running a saw pit without permission as he was doing sawing operation in a carpentry shop and as such the same was confiscated in exercise of power under Section 13 of the Act, but the learned District Judge, Cuttack has not approved the same. It would be apposite to mention here that the observation of the learned District Judge, Cuttack that an appeal lies against an order of confiscation passed by the Licensing Officer directly before it, is not correct. On perusal of sub-section (3) of Section 13 of the Act, it appears that the statute confers power on the Conservator of Forests empowered by the State in this behalf by Notification, within thirty days from the date of order of confiscation by the Licensing Officer either suo-motu or an application of the aggrieved party to call for and examine the records, cause such enquiry or make such enquiry and pass appropriate orders after giving due opportunity of hearing to the parties. Further, Section 13(4) of the Act provides that any person aggrieved by an order passed under Section 13(3) of the Act can challenge the same within thirty days from the date of communication of such order to him before the District Judge. So, on a conjoint reading of the aforesaid provisions, it appears that after the Licensing Officer passes and order of confiscation, the Conservator of Forests shall either suo-motu or on the application of the party can examine the records to find out the reasonability of sustainability of the order passed by such Licensing Officer. After passing of the final order by the said Conservator of Forest, if any person is aggrieved by such order, can prefer an appeal to the District Judge. Therefore, the exercise of appellate jurisdiction of the learned District Judge, Cuttack against the order of licensing officer is without jurisdiction. After passing of the final order by the said Conservator of Forest, if any person is aggrieved by such order, can prefer an appeal to the District Judge. Therefore, the exercise of appellate jurisdiction of the learned District Judge, Cuttack against the order of licensing officer is without jurisdiction. However, in normal course of things, this Court could have set-aside the order of the learned District Judge, Cuttack and could have remitted back the matter for fresh disposal on the aforesaid ground to the Conservator of Forests. The Apex Court in the case of Chandra Singh and others vrs. State of Rajasthan and another, (2003) 6 SCC 545 , have held that issuance of a writ of certiorari is a discretionary remedy. The High Court and consequently the Supreme Court while exercising their extra ordinary jurisdiction under Article 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or the Supreme Court may refuse to extend the benefit of discretionary relief to the applicant. Elaborating this principle further in the same judgment, the Apex Court have held that although a finding of the lower Court may be held to be erroneous, still it may not interfere if special circumstances are not shown to exist and justice of the case on facts does not require interference or if it feels the relief could be moulded in a different fashion. 10. In the instant case, form the materials on record, it is evident that the shop of the opposite party was ordinary carpentry unit and it further reveals that n saw pit was there. The operation undertaken by the opposite party which is a carpentry unit though some sizes were seized along with the saw seized therefrom, but the same was for the purpose of carpentry i.e. to cut and fashion the sizes, hence, it cannot be said that it was a saw pit within the purview of the Act particularly in the absence of any saw pit there. In this case, as such the very proceeding initiated by the Licensing Officer under the Act against the opposite party being misconceived as the Act has no application to the ordinary operations of carpentry as mandated in Section 25 of the Act, this Court does not want to interfere with the order of the learned District Judge, Cuttack in setting aside the order of confiscation. 11. Accordingly, this writ petition filed by the petitioner-state being devoid of merit stands dismissed. Hereinafter, it is open to the opposite party to approach the authority concerned for release of the seized articles. However, in the circumstances, there shall be no order as to costs. Petition dismissed.