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Madhya Pradesh High Court · body

2017 DIGILAW 457 (MP)

Gwalior Alcobrew Pvt. Ltd. v. State of M. P.

2017-04-04

ANAND PATHAK

body2017
ORDER 1. With consent, heard finally. 2. The present petition under Article 226 of the Constitution of India has been preferred at the instance of petitioner/company being crestfallen by the order dated 24.9.2015 (Annexure P-1) passed by respondent No.4 i.e. Authorized Officer-cum-Sub Divisional Officer Forest, Sub-Division, Gwalior penalty of fine of Rs.10,000/- has been imposed by the petitioner purportedly under section 52 of the Indian Forest Act, 1927. 3. Facts of the case in nutshell are that the petitioner/company vide sale deeds dated 8.2.2010 and 9.2.2010 (Annexures P-2 and P-3 respectively) has purchased land bearing survey Nos.351, 352, 354, 355 and 356 admeasuring area 4.54 hectare in Village Veelpura, Patwari Halka No.31, Tahsil Lashkar, District Gwalior. Name was mutated in the revenue records on the basis of registered sale deeds. Vide order dated 16.4.2013. Sub-Divisional Officer, Gwalior passed the order of diversion in favour of petitioner and thereafter land use of land in question was changed from agricultural to commercial. 4. After taking aforesaid formalities, petitioner started development work over the land in question and, therefore, JCB machine vide Registration No.MP07 DA-0251 was employed for clearing work within the boundary wall standing in the land in question. This clearing work precipitated series of events under which in-charge of Forest, Post Veelpura entered the petitioner's land and enquired about the authority and permission by which petitioner employed JCB machine. He registered a Preliminary Offence Report (P.O.R.) alleging the use of JCB machine in the forest area and petitioner was booked under section 26 of Indian Forest Act for clearing the forest area. The said preliminary report is placed as Annexure P-9. After preparation of preliminary report on dated 16.5.2015, petitioner was served with show cause notice on 6.6.2015 purportedly under section 52 of the Act regarding confiscation of JCB machine. Petitioner submitted reply to the show cause notice under section 52 of the Act and contested the contents. On the other hand, in respect of separate proceeding for offence under section 26 of the Act, respondents entered compromise and thus on the basis of payment of fine, compromise was given effect to and pursuant to said compromise, Conservator of Forest, Division Gwalior passed an order on 11.6.2015 constituting the committee of Revenue Officer and Forest Officer to carry out the demarcation of the area. Report so submitted by the committee concluded that part of Survey No.352 held by the petitioner comes within the purview of forest area and, therefore, petitioner was imposed fine of Rs.10,000/- for the offence under section 52 of the Act. This imposition of fine of Rs.10,000/- was changed over the petitioner instead of confiscating the JCB machine. The said order of imposition of fine passed on 24.9.2015 vide Annexure P-1 is subject matter of challenge in the petition. 5. Learned counsel for the petitioner raised the question of imposition of fine in the proceedings under section 52 of the Act. According to him, section 52 of the Act contemplates confiscation of vehicles and in the said provision either vehicle can be confiscated or not but certainly authority of imposition of fine of is not available to the respondents, therefore, impugned order passed by respondent No.4 is without jurisdiction. The petitioner also contends on merits of the case wherein on the basis of testimony of Forest Guard, Ramkaran Pal, in-charge Forest Chowki Veelpura, Satyaprakash Gaud and Divisional Forest Officer, Smt. Jyoti Chhawaria submits that no notification has ever been issued or published which declares Survey No.352 as forest area because accounting to him sections 3 and 4 of the Act, State Government has power to reserve any forest by notification. Here, no such notification was issued or published to declare the area in question as forest area. Therefore, according to him no offence is made out. Once the proceedings under section 52 of Act has not been conducted as per the spirit of section 52 of the Act and the proceedings are without jurisdiction, then question of appeal does not arise as per section 52A of the Act. It is further submitted that no forest produce has been taken out from the forest area, therefore, no offence has been committed as per the mandate of the Court given in the case of Shyambabu Kirar v. State of M.P. and others [ AIR 2016 MP 28 ]. As the forest area and land of petitioner are adjacent, therefore, permission regarding application of JCB machine goes in favour of petitioner as per the decision rendered in the case of State of M.P. v. Saurabh Namdeo [2016(1) MPLJ (Cri.) 337. Therefore,, he prayed for quashment of impugned order. 6. As the forest area and land of petitioner are adjacent, therefore, permission regarding application of JCB machine goes in favour of petitioner as per the decision rendered in the case of State of M.P. v. Saurabh Namdeo [2016(1) MPLJ (Cri.) 337. Therefore,, he prayed for quashment of impugned order. 6. On the other hand, learned counsel for the respondents/State opposed the prayer made by the petitioner and submits that according to him, alternative remedy is available to petitioner. Similarly, respondents raised the rebuttal on merits also. According to the counsel for the respondents, some part of land vide Survey No.352 comes under reserve forest land and the petitioner has committed offence in the said reserve forest area and, therefore, it has rightly been punished for the offence. Hence, he prayed for dismissal of petition. 7. Heard the learned counsel for parties and perused the record. 8. In the present context, Forest Act contains two penal provisions, one is section 26 of the Act, where certain acts have been prohibited in forest and under section 52 of the Act which prescribes penalties in respect of seizure of property liable to confiscation and procedure thereof. Section 26 of the Act is the provision which deals in respect of any prohibited act, purportedly done by any person, whereas section 52 of the Act deals in respect of property (equipments, vehicles etc.) employed in committing the offence as prescribed in the Act including the offence prescribed in section 26 of the Act. 9. In the present case, petitioner entered compromise with respondents for offence under section 26 of the Act for payment of fine. The compromise order is already filed with the petition as Annexure P-15, therefore, question remains in respect of offence/acts prescribed under section 52 of the Act. Section 52 of the Act deals is respect of confiscation only. Therefore, only order, which can be passed as per section 52 of the Act is for confiscation. Section 52 of the Act nowhere prescribes any provision to levy fine of any amount. Here, in the present case, respondent No.4 has passed the impugned order, wherein instead of confiscation of vehicle, fine has been imposed. Same is contrary to the provisions of section 52 of the Act. Section 52 of the Act nowhere prescribes any provision to levy fine of any amount. Here, in the present case, respondent No.4 has passed the impugned order, wherein instead of confiscation of vehicle, fine has been imposed. Same is contrary to the provisions of section 52 of the Act. What the Act provides as a penal consequence has not been inflicted over the petitioner but what has not been provided (regarding penal aspects) has been inflicted which is not permissible in law because penal provisions are to be construed very strictly and unless the penal provisions specifically stipulate imposition of any penalty then only such penalty can be imposed otherwise not. Here, the petitioner visited with the penalty of fine which is not as per the legislative intent and is contrary to the provisions. Thus, the impugned order deserves to be set aside on this ground alone. 10. Even otherwise, perusal of testimony of Divisional Forest Officer Smt. Jyoti Chhawaria, In-charge Police Chowki Veelpura, Satyaprakash Gaud and Forest Guard Ramkaran Pal suggests that no gazette notification declaring the area in question as forest area has been published. Therefore, Survey No.352, neither appears to be forest area nor prohibited as per the Act 1927. Only on the basis of Preliminary Offence Report (P.O.R.) such penal liability cannot be fastened. 11. On the basis of enquiry report, part of Survey No.352 cannot be declared as forest area. Declaration of any area as, forest area includes a definite procedure prescribed under the Act and in absence of the procedure, an area cannot be declared as forest area. Contentions raised by the counsel for respondents while challenging the maintainability of petition in view of section 52A of the Act is not tenable as once it is held by this Court that the order impugned passed by the authority suffers from jurisdictional error, then the petitioner is protected by the mandate of Hon’ble apex Court in the matter of “Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others [ AIR 1999 SC 22 ]”. Hon’ble apex Court in categorical terms held that if any proceedings are without jurisdiction or had purported to usurp jurisdiction without any legal foundation then alternative remedy is no bar. Here, the order impugned has been passed contrary to the provisions of the Act and is without jurisdiction, therefore, the plea regarding alternative remedy is not available to the respondents. Hon’ble apex Court in categorical terms held that if any proceedings are without jurisdiction or had purported to usurp jurisdiction without any legal foundation then alternative remedy is no bar. Here, the order impugned has been passed contrary to the provisions of the Act and is without jurisdiction, therefore, the plea regarding alternative remedy is not available to the respondents. Therefore, petition is very much maintainable under Article 226 of the Constitution of India against the impugned order dated 24.9.2015 purportedly passed under section 52 of the Act. 12. In view of cumulative analysis, petitioner made out its case and no other inference can be drawn except to quash the impugned order dated 24.9.2015 and subsequent proceedings if any initiated in pursuance to the said impugned order, while allowing the present writ petition. 13. Resultantly, petition stands allowed and disposed of accordingly.