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2019 DIGILAW 317 (ORI)

Laxmipriya Mohanty v. State Of Odisha

2019-04-12

S.K.SAHOO

body2019
JUDGMENT S.K. Sahoo, J. - Misc. Case No. 13949 of 2017 1. This is an application filed by the opposite party no.3, the Divisional Forest Officer, Baripada Division for modification of the order dated 22.02.2017 passed in W.P.(C) No.20944 of 2016 and further to direct the petitioners to produce the truck bearing registration No.OR-05-1A-4011 before the opposite party no.3 so that the property security furnished by the petitioners can be returned to them and necessary certificate can be given to the petitioners that they have given the possession of the vehicle. 2. Mr. Kishore Kumar Mishra, learned Addl. Government Advocate for the opposite party no.3 submitted that the order dated 22.02.2017 has been passed on an erroneous statement made by the learned counsel for the petitioners that the vehicle in question was virtually taken in possession by the Authorised Officer. In fact, when the Authorised Officer-cum-Assistant Conservator of Forest, Udala visited the spot, neither there was any chassis nor any engine of the vehicle available there and since the petitioners have not complied with the order dated 08.11.2011 passed in O.J.C. NO.13250 of 1999 and not surrendered the truck, the question of returning the property security to the petitioners which was furnished by them before the Authorised Officer-cum-Assistant Conservator of Forest, Udala, Baripada Division does not arise. 3. Learned counsel for the petitioners on the other hand contended that the misc. case filed by the opposite party no.3 for modification, is not at all maintainable in law inasmuch as the opposite party no.3 has virtually prayed for re-adjudication, rehearing and review of the case which has already been decided as per the order dated 22.02.2017. It is further submitted that when the order dated 22.02.2017 is very clear that the petitioners complied with the order dated 08.11.2011 passed by this Court in O.J.C. No.13250 of 1999 and the Authorised Officer-cum-Assistant Conservator of Forest, Udala is in possession of the vehicle, merely because the vehicle has not been sold, there is no justification for not returning the property security to the petitioners. It is further argued that since the opposite party no.3 failed to carry out the direction of this Court passed on 22.02.2017, the petitioners filed a contempt application on 19.04.2017 vide CONTC No.547 of 2017 against the opposite party no.3 and when the notice for show cause was issued, this misc. It is further argued that since the opposite party no.3 failed to carry out the direction of this Court passed on 22.02.2017, the petitioners filed a contempt application on 19.04.2017 vide CONTC No.547 of 2017 against the opposite party no.3 and when the notice for show cause was issued, this misc. case has been filed just to delay the contempt proceeding. 4. It is not in dispute that The order dated 22.02.2017 was passed after hearing the learned counsel for the petitioners as well as the learned counsel for the State. While passing the said order, the letter/order dated 25.09.2012 of the Authorised Officer-cum-Assistant Conservator of Forest, Udala written to the D.F.O., Baripada Division was perused wherein the Authorised Officer mentioned that the vehicle was inspected in Kuna Garage, Charampa, Bhadrak and it was found to be not in a position to be transported to Udala for surrender and accordingly it was ordered for disposal of the vehicle at the location i.e. Charampa, Bhadrak and the sale proceeds to be deposited in the appropriate government account. 5. It is contended by Mr. Mishra, learned Addl. Government Advocate that the letter dated 25.09.2012 would indicate that the possession of the vehicle was never handed over by the petitioner and the chassis and engine parts of the truck were found missing. The said letter has been annexed to the misc. case as Annexure- M/3. On perusal of the letter, which was also relied upon while passing the order dated 22.02.2017, it appears that the Authorised Officer-cum-Assistant Conservator of Forest, Udala inspected the truck at Kuna Garage, Charampa in the district of Bhadrak on 24.09.2012 and found that the chassis of the truck No.OR-05-1A-4011 was lying in Kuna Garage with engine and parts of the cabin of the truck and one Sri Ganesh Chandra Mohanty showed one damaged engine, lying nearby as engine of the vehicle No.OR-05-1A-4011 but the engine number was not visible. That is the reason why the Authorised Officer taking note of the physical status of the truck was of the opinion that the petitioners are not in a position to transport the truck to the Authorised Officer to surrender it before him, as per the direction of this Court. That is the reason why the Authorised Officer taking note of the physical status of the truck was of the opinion that the petitioners are not in a position to transport the truck to the Authorised Officer to surrender it before him, as per the direction of this Court. It is further mentioned in the said order that as the truck is not in a running condition, it cannot be brought to Udala for surrender and it was ordered that the truck might be disposed of at that location i.e. Charampa, Bhadrak and the sale proceeds to be deposited in the appropriate government account, after which the amount deposited by the petitioners before this Court along with interest accrued thereon and the property security furnished by the petitioner before the Authorised Officer be also returned to them. 6. In view of the letter/order dated 25.09.2012, the submission of the learned Addl. Government Advocate that when the authority visited Kuna Garage, Charampa, they neither found any chassis nor any engine cannot be accepted. The said letter is very clear and unambiguous which has been noted in the order dated 22.02.2017. There is no material on record that the petitioners at any point of time obstructed the authority to take possession of the vehicle in question. The petitioners were concerned in the delivery of the vehicle not its sale. Therefore, the contention which was raised by the learned counsel for the petitioners that the Authorised Officer had taken possession of the vehicle in question appears to be correct. 7. It appears that in the garb of modification application, the opp. party no.3 has virtually sought for review of the order dated 22.02.2017. 8. Since, I am of the humble opinion that there is no misrepresentation of fact made by the petitioners during argument on 22.02.2017 and no fraud has been committed on the Court and there is neither any mistake nor any error apparent on the face of record and after hearing both the parties and relying upon the letter of the Authorised Officer dated 25.09.2012, this Court has passed the order, there is no scope to modify the aforesaid order. 9. Accordingly, the misc. case stands dismissed.