Andhra HC (Pre-Telangana)
Yak Granite Industries Pvt. Ltd. vs Authorised Officer-Cum-Divisional ... on 10 April, 2007
Equivalent citations: 2007(4)ALD584, AIR 2007 (NOC) 2339 (A. P.)
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
JUDGMENT L. Narasimha Reddy, J.
1. The petitioner submitted an application on 22-7-1992 to the Deputy Director of Mines and Geology, for grant of quarry lease, in respect of an extent of Ac.2.45 cents of land in Sy.No. 511/P of Prabhagiripatnam Village, Podalakur Mandal, Nellore District, with an object of extracting coloured granite. Some disputes existed, as to whether the land is part of any reserve forest, or revenue land, vested in the Government. On a clarification sought by the Deputy Director of Mines and Geology, the Divisional Forest Officer, Nellore, issued proceedings dated 11-7-1985, stating that the land does not fall in the reserve forest, and that his department has nothing to do with the land. On the basis of this clarification, the Deputy Director of Mines and Geology granted mining lease in favour of the petitioner, on 12-1-1993. The petitioner was operating the quarry, duly paying the seigniorage fee from time to time.
2. The Deputy Forest Range Officer visited the quarry site on 9-6-2002 and seized tippers, crane, compressor, proclain, welding generator etc., on the ground that the mining operations were being carried out in the forest area. The petitioner approached this Court by filing W.P. No. 12162 of 2002, seeking release of the seized vehicles and machinery. The writ petition was disposed of, on 10-10-2002, directing that a joint survey, with the participation of officials of the departments of revenue and forest, be conducted. The proceedings initiated under Section 44 of the A.P. Forest Act, 1967 (for short 'the Act'), pending before the Authorized Officer-cum-Divisional Forest Officer, Nellore, the 1st respondent herein, were directed to be kept in abeyance, till the completion of the joint survey. The survey so conducted, revealed that the land is part of reserve forest, and a report to that effect was submitted on 15-11-2002.
3. W.P. No. 24651 of 2002 is filed for a declaration, that the survey report dated 15-11-2002 is illegal, arbitrary and contrary to the provisions of the Survey and Boundaries Act, and for a consequential declaration that the land in Sy.No. 511/P is not part of reserve forest.
4. The 1st respondent proceeded to hear the case registered against the petitioner, under Section 44 of the Act, and through order dated 10-1-2004, directed confiscation of the seized vehicles and machinery. W.P. No. 3388 of 2004 is filed challenging the confiscation.
5. Petitioner contends that, the lease was granted after verification from the Forest Department, and it is not open to the respondents to treat the land as part of reserve forest, after the petitioner invested huge amounts and mobilized machinery and manpower. It is also contended that, for the first time, the Forest Department put forward its claim in June 2002, and straightaway resorted to seizure of the machinery, and there cannot be any basis for such a highhanded action.
6. The respondents filed counter-affidavits in both the writ petitions. As regards the survey, it is stated that 8 officials of the Forest and Revenue Departments have participated in the joint survey, and that the survey was conducted by using the latest technology and equipment. It is stated that the survey does not suffer from any infirmity, and once it has emerged that the land is part of reserve forest, the petitioner cannot claim any rights upon it. An objection is raised, as to the maintainability of the writ petition, to assail the result of a survey. So far as the confiscation is concerned, it is urged that the same is valid, inasmuch as the petitioner was found to have dumped the dug material in the forest land, and that the explanation offered by the petitioner was found to be not acceptable.
7. Smt. N. Shoba, learned Counsel for the petitioner submits that the views and opinion of the concerned Forest Divisional Officer, Nellore, were obtained, before the quarry lease was granted in favour of the petitioner, and the Forest Department is estopped from raising any objection for the lease, after it was granted. She contends that the joint survey is not impartial, and is not in conformity with the records. Learned Counsel submits that the Authorized Officer did not refer to any provision of the Forest Act in directing confiscation, and at any rate, the petitioner cannot be said to have committed any offence under the Act, since it was operating the machinery on the strength of a lease granted by the Department of Mines and Geology.
8. Learned Government Pleader for Forest, on the other hand, submits that if the petitioner feels aggrieved by the joint survey report, it has to work out its remedies under the Survey and Boundaries. Act. She contends that, beyond any doubt, the petitioner was found to have operated the machinery and vehicles in the forest land, and thereby the provisions of the Act are attracted. She submits that mere absence of reference to specific provision, does not invalidate the order of confiscation.
9. W.P. No. 24651 of 2002 is filed challenging the joint survey dated 15-11-2002, on several grounds. Reference is made to a certificate issued by the Divisional Forest Officer, Nellore, in the year 1985, and certain other records. An ancillary relief was claimed in this writ petition, in relation to the seized vehicles also, when a notice under Section 44 of the Act was given. Inasmuch as the proceedings under Section 44 of the Act ended up, with an order of confiscation, the scope of the writ petition stands restricted to the challenge, to the land survey report. The A.P. Survey and Boundaries Act prescribes a detailed procedure for conducting of surveys and remedies to the parties, aggrieved by the surveys so conducted. It also provides for filing of a suit, and the disputed questions of fact can be resolved therein, on the basis of the evidence adduced by the parties. This Court cannot undertake an enquiry, as to the correctness of the survey conducted, in pursuance of the directions issued in W.P. No. 12162 of 2002.
10. Therefore, no relief can be granted to the petitioner vis-a-vis the survey report dated 15-11-2002, and the petitioner has to work out it remedies in accordance with law.
11. The order of confiscation passed under Section 44 of the Act is challenged in WP No. 3388 of 2004. The machinery in question was seized by the officials of the Forest Department, on 9-6-2002. The petitioner was operating the quarry on the basis of a lease granted by the Deputy Director of Mines and Geology. This was preceded by a certification by the Divisional Forest Officer, Nellore, vide his letter dated 11-7-1985, stating that the land is not, part of reserve forest. The record does not disclose that the officials of the Forest Department have raised an objection for the quarrying operations undertaken by the petitioner, before they seized the vehicles and machinery. The petitioner has been carrying on operations, for about 9 years, by the time the seizure was effected. At no point of time, the officials of the Forest Department have addressed any proceedings to the Mining Department, or the petitioner. Neither in the seizure panchanama, nor in the order of confiscation, the provision of law, which is said to have been contravened by the petitioner, is mentioned.
12. The Act is very comprehensive in nature. It defines forest offences and provides for punishment of different categories for such offences. Section 44 is procedural in nature. By itself, it does not, either define any offence, or provide for any punishment. An order to be passed under Section 44 of the Act must be referable to the provision, alleged to have been violated by the offender. Further, before any vehicle or receptacle is seized or confiscated, the nature of activity, that has been carried through it, must be specified. Wholesale seizure and confiscation of everything, which was found to be on a land, which is part of reserve forest; cannot be sustained. Another requirement is that, the owner or operator of the machinery must have mens rea to commit forest offences.
13. In the instant case, as observed earlier, the petitioner was operating the mine, on the basis of a lease granted under the A.P. Mining Mineral Concession Rules, and by paying royalty. It was not a clandestine operation, or an illegal activity. The mere fact that the officials of the Forest Department took the view that the quarry is in forest area, cannot straightaway entail in seizure, or confiscation. Things would have been different, had the petitioner been warned, not to enter the area or to operate the quarry, and it still persisted in the operation. No wrongful motive can be attributed to an agency, which held a valid quarry lease, and has been operating the quarry, for about a decade. The respondents did not indicate the provision, that is said to have been violated by the petitioner. Being punitive in nature, the order of confiscation is required to be specific, as to the offence or contravention.
14. For the foregoing reasons, the W.P. No. 24651 of 2002 is dismissed, leaving it open to the petitioner to work out its remedy under the A.P. Survey and Boundaries Act against the joint survey report dated 15-11-2002. W.P. No. 3388 of 2004 is allowed, setting aside the order of confiscation, dated 10-1-2004, and directing release of the seized vehicles and machinery of the petitioner, forthwith. It is, however, directed that the petitioner shall not be entitled to operate the quarry, as long as the joint survey report is in force
15. There shall be no order as to costs.