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2019 DIGILAW 387 (ORI)

Nanda Kishore Mishra v. State of Orissa

2019-05-13

BISWANATH RATH

body2019
JUDGMENT : BISWANATH RATH, J. 1. This writ petition has been filed seeking quashing of the order dated 13.01.2003 passed by the Authorized Officer, Nayagarh Division, Nayagarh in O.R. No.95 of 1999-2000 and also the judgment dated 16.05.2008 passed by the District Judge, Puri in F.A. O. No.30/2003 in confirmation with the order of the Authorized Officer, Nayagarh Division, Nayagarh. 2. Short background involved in the case is that the Forest staff of Dasapalla upon receipt of V.H.F message from Ghogada beat, went on patrolling duty towards Ghogada on 22.10.1999 and it is at this point of time, the Patrolling party found, on Dasapalla Bhanjanagar P.W.D. Road, at Pankala Sahi Mohavir Taila on Dasapalla, a truck was coming and on signal to the Driver to stop the truck the driver tried to escape from the spot with high speed and it is at this point of time the wheel of the truck entered into loose soil and could not move any further. The Patrolling party saw, the driver of the Truck and fifteen laborers alongwith some other persons were sitting in the truck. On verification of the dala of the Truck they found, the truck was loaded with green axe cut 24 numbers of teak logs covered with green branches. On the spot the logs were measured which come to 80.070ft. and seized alongwith the truck bearing Registration no.OR-X-666. The Truck driver could not be able to produce any permit in support of transportation of the said teak logs. The driver also could not able to produce the R.C. Book of the truck and the driving licence at the time of seizure. Consequently, the truck along with the teak logs were seized by the Forest Guard and a seizure list was also prepared in presence of the driver and the witnesses. On receipt of the preliminary report about seizure of truck, the R.T.O, Cuttack and Bhubaneswar were informed to intimate the name and address of the owner of the seized truck. But no reply was sent by them. In the meantime, a final report was submitted by the Range Officer indicating therein that on local inquiry he came to know that one N.K. Mishra of Daspalla is the owner of the truck. On receipt of the final report show cause notice was issued to the owner and the other persons involved therein. In the meantime, a final report was submitted by the Range Officer indicating therein that on local inquiry he came to know that one N.K. Mishra of Daspalla is the owner of the truck. On receipt of the final report show cause notice was issued to the owner and the other persons involved therein. Records further reveals that all such notices were received back undelivered with postal remark "always absent". Ultimately response was filed by the owner denying the involvement of the owner in the alleged offence. On completion of hearing the Authorized officer based on the materials available on record finally disposed of the Forest Offence case observing the involvement of the owner of the vehicle in the offence involved and thus also, directed for confiscation of the vehicle as well as the forest produces involved therein. After the appeal period is over an appeal was preferred vide F.A.(O) 30 of 2003 on the file of the District Judge, Puri and the appeal was finally dismissed thereby confirming the order passed by the Authorized Officer. 3. Assailing the order passed by the original authority as well as the appellate authority the petitioner has challenged both the orders mainly on the premises that involving the incident the petitioner has lodged an F.I.R. making an allegation against the Range Officer involved in seizure of the truck and further alleging therein that there is rivalry between the petitioner herein and the opposite party no.3-Gopal Chandra Pattanaik. It is also alleged that keeping grudge said Gopal Chandra Pattanaik hatched the conspiracy to facilitate initiation of a forest offence case involving the petitioner, resulting the present litigation. It is also further alleged that even though the petitioner had attempted for supply of necessary document by filing application, the documents have not been supplied to him and even though the petitioner further sought for some time to produce his witnesses in defence, the Authorized Officer did not grant time to the petitioner for examining his witness. Further taking this Court to the manner of disposal of the proceeding by the Authorized officer, Sri Mishra, learned counsel also alleged that the Authorized Officer who is hand in glove with Shri Gopal Chandra Pattanaik, has somehow other closed the proceeding with clear intention to penalize the petitioner. Further taking this Court to the manner of disposal of the proceeding by the Authorized officer, Sri Mishra, learned counsel also alleged that the Authorized Officer who is hand in glove with Shri Gopal Chandra Pattanaik, has somehow other closed the proceeding with clear intention to penalize the petitioner. It is further alleged that in spite of bringing all these objections in the memorandum of appeal, the appellate authority did not deal with the allegations and through the grounds taken therein but however, based on the materials available on record closed the appeal confirming the order passed by the Authorized Officer. 4. Shri Mishra, learned counsel for the petitioner on reiteration of the grounds indicated herein and taking help of some judgments of the Hon'ble Apex Court as well as of this Court submitted that for the support of the judgment to the case of the petitioner, the impugned order as well as judgment should be interfered with and thereby prayed for a fair trial involving the dispute involved herein. 5. Shri U.K. Sahoo, learned Additional Standing Counsel, on the other hand, taking this Court to the materials available on record, the observation by the Authorized Officer, the findings made therein and also the observations made in the appellate Court's judgment submitted that though there is no dispute that there has been no fair chance given to the petitioner in the matter of his defence, but for the observation and findings therein submitted that there is no infirmity in the impugned order or the judgment requiring interference by this Court. 6. Considering the rival contentions of the parties and taking into account the initiation of the forest offence proceeding, this Court on perusal of the documents enclosed with the writ petition finds, the documents disclose that there has been some proceedings against Shri Gopal Chandra Pattanaik for the complaint of the present petitioner going on since 1999. There is also materials disclose that there has been some departmental proceedings initiated involving Shri Gopal Chandra Pattanaik again basing on the complaint of the present petitioner. There is also materials disclose that the truck of the petitioner used to be engaged for transportation of the woods from the Government depots. There is also materials disclose that there has been some departmental proceedings initiated involving Shri Gopal Chandra Pattanaik again basing on the complaint of the present petitioner. There is also materials disclose that the truck of the petitioner used to be engaged for transportation of the woods from the Government depots. This Court also from the show cause submitted by the present petitioners finds, involving the forest offence wherein the petitioner had the clear indication that the forest offence case is initiated at the instance of Shri Gopal Chandra Pattanaik due to inimical terms in between them. There has been initiation of criminal case against the petitioner at the instance of Shri Gopal Chandra Pattanaik vide G.R. Case no.117 of 1993 which was ended with acquittal of present petitioner and there remains serious allegation that the present case is the outcome of grudge by Shri Gopal Chandra Pattanaik. The owner of the vehicle has also the specific response stating therein that due to Puja Vacation he had been to Calcutta and after his return, he did not find his truck and came to learn that the Truck has been seized by the forest guards when it was driven by one Niranjan Pradhan the temporary driver. Therefore, the petitioner took a plea of no personal involvement involving the incident. On perusal of the records, this Court finds admittedly, there has been some applications before the Authorized Officer asking for supply of document but no material or statement however coming forthwith establishing supply of document or not. Secondly the records also disclose that the Advocate of the petitioner sought for adjournment of the matter to enable the petitioner to produce the defence witness, the order-sheet discloses that even though there has been some adjournments but on the ultimate date in spite of an application for adjournment, the matter was closed and the final order was passed by the Authorized Officer. From the memorandum of appeal available from the case record, this Court finds, the petitioner has agitated all the above. The petitioner as the appellant has also raised the ground of non-supply of document and not providing the scope for cross examination of the witnesses presented by the prosecution, further also not providing him reasonable opportunity to provide his own evidence besides there has been also several other witnesses who have not been examined. The petitioner as the appellant has also raised the ground of non-supply of document and not providing the scope for cross examination of the witnesses presented by the prosecution, further also not providing him reasonable opportunity to provide his own evidence besides there has been also several other witnesses who have not been examined. It is for the specific allegations of not providing opportunity of evidence, non-supply of material particulars and looking to the settled position of law making the order of conviction liable to be interfered with for not providing proper opportunity to the accused/defence involved therein, this Court going through the order of the Authorized Officer finds, there is in fact no proper opportunity to the petitioner in the original stage of the matter. Further in spite of raising all such grounds, this Court going through the appellate court's judgment finds, even though the Appellate court took note of such allegations, there is absolutely no answer on the allegation of not providing reasonable opportunity to defend his case to the accused therein and the appellate court's judgment is merely based on the material transpired through the document filed by the prosecution and a decision for dismissing the appeal has been taken merely basing on the evidence and materials produced by the prosecution. It is, at this stage of the matter, going through the judgment of a Division Bench of this Court in the case of State of Odisha versus The Government of India, 2016 Supp2 OrissaLR 65 this Court finds, in paragraph nos.14 to 18 the Division Bench observed as follows: "14. Natural justice is an important concept in an administrative law. It is also known as "substantial justice", "divine justice", "fundamental justice", universal justice, "raitional justice" and "fair play in action". The rules of natural justice have been summarized in one word i.e. "fairness. Natural justice is a great humanizing principle intended to invest law with fairness to secure justice and to prevent miscarriage of justice." 15. In automotive Tyre Manufacturers Assn. V. Designated Authority, (2011) 2 SCC 258 , the Apex Court held that the golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. Its essence is good conscience in a given situation, nothing more, but nothing less. In automotive Tyre Manufacturers Assn. V. Designated Authority, (2011) 2 SCC 258 , the Apex Court held that the golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. Its essence is good conscience in a given situation, nothing more, but nothing less. Similar view has also been taken in Competition Commission of India v. SAIL, (2010) 10 SCC 744 , Haryana Financial Corpn. V. Kailash Chandra, (2008) 9 SCC 31 , Sahara India (Firm) (I) v. CIT, (2008) 14 SCC 151 and other plethora of cases. 16. No provision is found in any statute requiring observance of the principles of natural justice by adjudicating authorities. The question then arises whether the adjudicating authority is bound to follow the principles of natural justice. In Judicial Review of Administrative Action (5th Edn.) de Smith said that where a statute authorizing interference with properly or civil rights was silent on the question of notice and hearing, the Courts would apply the rule as it is "of universal application and founded on the plainest principle of natural justice". Lord Russell said it is to be implied unless the contrary appears, that Parliament does not authorize by the Act the exercise of powers in breach of the principles of natural justice, and that Parliament does by the Act require, in the particular procedures, compliance with those principles. Nethim stated Formerly the presumption had been that there was no obligation to give a hearing unless the statute itself indicated such an obligation; now the presumption is that there is such an obligation unless the statute clearly excludes it, notwithstanding the vesting of a power, in subjective germs, in a minister responsible to Parliament. 17. It is well settled that where exercise of power results in civil consequences; unless the statute specifically rules out, the principle of natural justice would apply. This position of law no more remains as res integra in view of the catena of decisions laid down by the Apex Court starting from the State of Orissa v. Dr. Binapani Dei, (1967) AIR SC 1269 and till date. 18. In A.K. Kraipak v. Union of India, (1970) AIR SC 150, the Apex Court held as follows: "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. Binapani Dei, (1967) AIR SC 1269 and till date. 18. In A.K. Kraipak v. Union of India, (1970) AIR SC 150, the Apex Court held as follows: "The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement. In Maneka Gandhi v. Union of India, (1978) AIR SC 597 the Apex court held as follows: "It is well established that even where there is no specific provision in a statute or rules mae thereunder for showing cause against action proposed to be taken against an individual, which affects the rights of that individual the duty to given reasonable opportunity to be heard will be performed by the authority which has the power to take punitive or damaging actions." Similarly, in Mohinder Singh Gill v. Chief Election Commissioner, 1978 AIR SC 8541, the Apex Court held "the silence of a statute has no exclusionary effect where it flows from necessary implication." Applying the aforementioned decisions on the principles of natural justice to the present context it appears that the communication dated 25.11.2010 directing to make payment of the amount determined is in gross violation of principle of natural justice." In a case involving Automotive Tyre Manufacturers Assn. V. Designated Authority, (2011) 2 SCC 258 , the Hon'ble Apex court held that the golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. Similar view is also taken in the case of Competition Commission of India versus SAIL, (2010) 10 SCC 744 , Haryana Financial Corpn. versus Kailash Chandra, (2008) 9 SCC 31 , Sahara India (Firm) (I) versus CIT, (2008) 14 SCC 151 . Similar view is also taken in the case of Competition Commission of India versus SAIL, (2010) 10 SCC 744 , Haryana Financial Corpn. versus Kailash Chandra, (2008) 9 SCC 31 , Sahara India (Firm) (I) versus CIT, (2008) 14 SCC 151 . Reading the order of the Authorized Officer this Court finds, there have been postponement of the original proceeding on several dates and there have been some opportunity to the opposite party therein to attend the proceeding but ultimately, this Court finds, there has been no cross-examination of the prosecution witnesses and further the application of the opposite party therein to postpone the matter with a view to produce the defence witness has been rejected and the case was posted to next date for pronouncement of judgment that too while keeping the request for supply of documents at the instance of the present petitioner pending. Looking to the nature of offence this Court finds, there is no fair trial. There appears no material at least involving hearing of the proceeding and there is also no discussion in the judgment of the original authority/Authorized Officer on consideration of the case of rival parties and the proceeding has been concluded in absence of cross-examination of prosecution witness, examination of defence witness and also not supplying document being asked for by the petitioner. Manner of disposal of such proceeding is opposed to Law. 7. In the above circumstance this court finds, the petitioner satisfies the case that there has been no compliance of natural justice by the original authority i.e. the Authorized Officer in the proceeding involved herein and for there being no consideration of this aspect by the appellate authority and for the support of decision referred to hereinabove to the case of the petitioner, this Court interfering in both the orders passed by the Authorized Officer as well as the Appellate authority involved herein, sets aside the same, but however, since the original proceeding requires to be recommenced and re-adjudicated, this Court while setting aside both the orders involved herein remits the matter back to the Authorized officer-cum-Assistant Conservator of Forests, Nayagarh Division for re-adjudication of the proceeding vide O.R. No.95 of 1999-2000 after providing copies of document sought for by the petitioner and also giving scope of evidence to the petitioner. For the remand of the matter the petitioner is directed to appear before the Authorized Officer-cum-Assistant Conservator of Forests, Nayagarh with copy of this judgment within a period of three weeks hence. 8. The writ petition succeeds but with an order of remand and the direction contained therein. No cost.