Jharkhand High Court
Amit Kumar Singh vs The State Of Jharkhand Through Its ... on 18 September, 2019
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P (C) No. 808 of 2016
Amit Kumar Singh ....... Petitioner
Versus
1.The State of Jharkhand through its Principal Secretary, Department of
Forest.
2.The Collector cum District Magistrate, Bokaro.
3.The Divisional Forest Officer, Bokaro Forest Division, Bokaro.
...... Respondents
---------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
----------
For the Petitioners : Mr. Mukesh Kumar, Adv.
For the Respondents : Mr. Prashant Pallav, G.A-IV.
-----------
th
7/Dated: 18 September, 2019
1. This writ is under Article 226 of the Constitution of India, wherein the order dated 11.01.2016 passed by the revisional authority in Revision Case No.49 of 2015 by which the revisional authority has declined to interfere with the order passed by the appellate authority dated 22.06.2015 passed in Confiscation Appeal No.04 of 2014, whereby and whereunder the order dated 06.02.2014 passed by the Divisional Forest Officer in Confiscation Case No.22 of 2013 has been affirmed.
2. The brief facts of the case as per the pleading made in the writ petition is that, one Bimal Kumar Mandal after purchasing Steam Coal and after loading the same in truck bearing vehicle no.JH 09J 7422 from Maa Vaisno Coal Traders, Dhanbad was coming to its destination but apprehended and seized by the Officer in Charge on 31.01.2013 and in course of search the driver fled away, in consequence thereof, the regular police case has been instituted for commission of offence under Section 413, 414, 120(A) of the Indian Penal Code as also under Section 33 of the Indian Forest Act.
The competent authority has submitted prosecution report before the competent court of criminal jurisdiction as also before the Authorized Officer cum Divisional Forest Officer, Bokaro, in pursuance thereof, confiscation proceeding has been initiated being Confiscation Case No.22 of 2013.
The order has been passed in aforesaid confiscation proceeding for confiscation of vehicle bearing vehicle no.JH 09J 7422.
2The petitioner has filed appeal against the aforesaid order before the Deputy Commissioner under its appellate jurisdiction, but the appellate authority has declined to interfere with the finding and conclusion recorded by the confiscating authority vide order dated 22.06.2015, against which revision has been preferred which has also been dismissed and against these three concurrent findings, the present writ petition has been filed under Article 226 of the Constitution of India for issuance of writ of certiorari.
3. The ground agitated by the petitioner, in support of his submission is that it is not a case that the relevant documents pertaining to transportation of coal loaded over the truck in question has not been produced rather at the very first moment i.e. at the stage of submission of reply in terms of the issuance of notice issued by the confiscating authority, the relevant documents showing therein conclusive proof of the purchase of the said coal from one Maa Vaisno Coal Traders, Dhanbad, has been produced but the same has been discarded by the confiscating authority merely on the ground of presumption and if that document was available with the petitioner, the same would have been produced at the time of interception of the vehicle but having not been done so it is nothing but an afterthought and fabrication of document in order to defend at the time of filing of the show cause and therefore, the confiscating authority merely on presumption and surmises has come to the finding about non availability of the documents in respect of valid purchase of the coal loaded in the truck, as such the said order is not sustainable.
The appeal as also revision has been filed before the appellate as well as the revisional authority raising this issue but without appreciating this aspect of the matter they have shown no reason to differ with the finding of the confiscating authority and as such according to the petitioner since there is no appreciation of the relevant documents and as such the finding recorded by the original authority confirmed by the appellate authority and the revisional authority will be said to be perverse one and as such it is a fit case where writ in the nature of certiorari is required to be issued for quashing of the impugned order.
4. Mr. Prashant Pallav, G.A-IV for the State of Jharkhand has submitted by making reference of the Section 52 of the Indian Forest Act wherein entire process of seizure and confiscation has been provided under the said Amendment (Bihar) Act 9 of 1990 wherein as under Section 5 to the said 3 Amendment Act, the confiscating authority is required to pass an order on being satisfied with the stand taken by the concerned against whom a proceeding has been initiated and in the facts and circumstances of the case the confiscating authority has found no reason to differ with the seizure memo wherein no document mentioned in support of valid purchase of the coal and as such by exercising the power of general prudence, the confiscating authority has come to the conclusion by discarding the documents which has been produced by the petitioner at the time of filing of the show cause along with the challans in respect of his defence and rightly done so, if the document was there ought to have been produced at the time when the vehicle was intercepted by the concerned police officials basis upon which the seizure has been made in presence of the independent witnesses.
The further submission has been made that since there is three concurrent finding given by the competent statutory authority and as such this Court may not interfere under Article 226 of the Constitution of India by reversing the finding recorded appreciating the evidence, otherwise writ Court would be said to be Court of appeal and the said power is not available under the power conferred to issue writ of certiorari under Article 226 of the Constitution of India.
5. This Court after having heard learned counsel for the parties and on appreciation of the rival submissions, deem it fit and proper to first deal with the scope of Article 226 of the Constitution of India, in the matter of issuance of writ of certiorari.
There is no dispute about the position of law as has been settled by the Hon'ble Apex Court, right from the case of Syed Yakoob vs. Radhakrishnan reported in AIR 1964 477 wherein while dealing with the writ of certiorari it has been laid down that the scope of writ of certiorari is very limited to the extent that if any decision/finding has been taken by the administrative authority if suffers from any jurisdictional error or perversity in the finding, the finding recorded in the order is to be reversed by the writ Court.
It needs to refer herein that the scope of interference of the High Court to issue writ of certiorari sitting under Article 226 of the Constitution of India is very limited, as has been discussed by Hon'ble Supreme Court in the case of Syed Yakoob Vrs. Radhakrishnan reported in A.I.R. 1964 477 4 Supreme Court wherein at paragraph no.7 their Lordships have held as follows:-
"The question about the limits of the jurisdiction of High Courts in issuing a writ of certiorari under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt. A writ of certiorari can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals :
these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction. A writ can similarly be issued where in exercise of jurisdiction conferred on it, the Court or Tribunal Acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order, or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice. There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court. It is within these limits that the jurisdiction conferred on 5 the High Courts under Art. 226 to issue a writ of certiorari can be legitimately exercised (vide Hari Vishnu Kamath v. Ahmad Ishaque, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233); Nagendra Nath v. Commr. Of Hills Division, 1958 SCR 1240 : (AIR 1958 SC 398) and Kaushalya Devi v. Bachittar Singh, AIR 1960 SC 1168.
In another judgment of Hon'ble Apex Court in the Case of Sawarn Singh Vrs. State of Punjab reported in (1976) 2 SCC 868 their Lordships while discussing the power of writ under Article 226 for issuance of writ of certiorari has been please to hold at paragraph nos.12 and 13 as under:
"12. Before dealing with the contentions canvassed, it will be useful to notice the general principles indicating the limits of the jurisdiction of the certiorari jurisdiction can be exercised only for correcting errors of jurisdiction committed by inferior courts or tribunals. A writ of certiorari can be issued only in the exercise of supervisory jurisdiction which is different from appellate jurisdiction. The Court exercising special jurisdiction under Article 226 is not entitled to act as an appellate Court. As was pointed out by this Court in Syed Yakoob's case (supra).
13. In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice."
In another judgment rendered by Hon'ble Apex Court in the case of Pepsico India Holding (P) Ltd. Vrs. Krishna Kant Pandey reported in (2015) 4 SCC 270 their Lordships while discussing the scope of Article 226 and 227 of the Constitution of India in the matter of interference with the finding of the tribunal has been please to hold by placing reliance upon the judgment rendered in the case of Chandavarkar Sita Ratna Rao Vrs.
6Ashalata S. Guram reported in (1986) 4 SCC 447 at para 17 has held as under:-
"17. In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal V. Laxmibai R. Tarta where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J, as the learned Chief Justice then was, observed at page 1301 of the report as follows:
......... power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways v. Sukumar Mukherjee to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors.
This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bose V. Commr. Of Hills Division and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case:
It is thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226 the power of interference may extent to quashing an impugned order on the ground of mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeking that the tribunal functions within the limits of its authority."
6. Recently, in an unreported judgment in Civil Appeal No. 8071 of 2010 (General Manager, Electrical Rengali Hydro Electric Project Orissa & Ors. vs. Giridhari Seth & Ors.) delivered on 12.09.2019 the scope of writ of certiorari has been discussed while deciding the order passed by the Orissa High Court, wherein the award having been passed by the labour court 7 confirming it, was the subject matter before the Hon'ble Apex Court pertaining to an issue of adjudication along with 75% back wages in a case where the worker has got separation under the voluntary separation scheme, wherein the Hon'ble Apex Court reversed the judgment passed by the Hon'ble Orissa High Court has come to the finding that when there is perversity and finding is found to be erroneous, the writ Court under Article 226 or under Section 32 or under Article 136 can interfere and set aside the finding recorded and considering the fact that after reassess since the concern employ after accepting the money deposited in the Bank A/c has reversed the finding in the Orissa High Court as also award has been set aside by the Labour Court meaning thereby the scope of writ of certiorari is not to be exercised by way of court of appeal to appreciate the evidence.
The factual aspect of this case has been tested in the touchstone of prayer and the fact leading to this case which is not in dispute by the petitioner that at the time of interception of vehicle no vehicle pertaining to valid challan would be before the seizing authority rather it is the admitted case of the petitioner that when the prosecution report has been submitted by the seizing authority before the confiscating authority in presence thereof show cause notice has been issued and at the time of filing of the reply the documents pertaining to valid purchase of coal from the Maa Vaisno Coal Traders has been produced. The said defence has not been considered by the confiscating authority on the prudence reason being that if the said document was available said to have purchased the coal valid, the said document ought to have been produced at the time of confiscation of the vehicle but having not done so, rather having been produced the same before the confiscating authority after substantial lapse of time which has been presumed afterthought and therefore, the said document has been discarded.
7. This Court is of the view that the finding recorded on the basis of that factual aspect suffers from no infirmity in view of the fact that if the coal was validly purchased, the driver would not have fled away from the spot and further the document pertaining validly purchased ought to have been produced immediately at the spot itself so that the consequential decision may be taken by the concerned competent authority.
Further, the appellate authority and the revisional authority have appreciated this aspect of the matter but declined to interfere with the finding recorded therein, thereafter there is three conclusive finding by the 8 concurrent authority as per the power conferred under the statute depending upon the factual aspect and as such nothing has been brought to the notice of this Court showing perversity in the finding, warranting interference of this Court under Article 226 of the Constitution of India issuing writ of certiorari.
8. This Court after applying the principle laid down by the judgment referred herein above and going through the factual aspect involved in this case has found that it is not a case where writ of certiorari is required to issue to justify the fact finding appreciating otherwise, this Court will be said to be Court of appeal which would not be proper and that would be beyond the scope of Article 226 of the Constitution of India.
It has also been brought to notice of this Court that in a similar situated circumstances, the confiscating proceeding confirmed up to the revisional authority has been challenged by one Dinesh Mahto in W.P.(C) No.4807 of 2018 but this Court has declined to interfere with the conclusive finding recorded by the authority by dismissing the writ petition against which intra Court appeal has been filed being L.P.A No.300 of 2019 but the same has been dismissed as has been informed by Mr. Prashant Pallav, learned G.A-IV appearing for the State.
9. In the entirety of the facts and circumstances of the case the writ petition fails and is dismissed.
10. Consequently, I.A. No.3176 of 2017 stands dismissed.
At this juncture, it has been submitted by Mr. Prashant Pallav, learned G.A-IV that in course of pendency of the writ petition, in confiscating proceeding the vehicle has been released in favour of the petitioner by virtue of the order dated 03.08.2016 passed by this Court, therefore, since the writ petition is dismissed, the said interim order would be said to be merged in the final order passed in this case today and as such the consequence would follow so far as it relates to release of the vehicle.
(Sujit Narayan Prasad, J.) Saket/-