Orissa High Court
State Of Orissa And Others vs Mahinder Singh on 27 October, 2017
Author: B.R. Sarangi
Bench: B.R. Sarangi
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No. 4764 of 2004
In the matter of an application under Articles 226 and 227 of
the Constitution of India.
--------------
AFR State of Orissa and others ......... Petitioners
-Versus-
Mahinder Singh .......... Opp. Party
For petitioners : Mr.D.K. Pani,
Addl. Standing Counsel
For opp. party : M/s. B.K. Kar, M. Acharya
and S.Ch. Dash, Advocates
---------------
PRESENT:
THE HONOURABLE DR. JUSTICE B.R. SARANGI
---------------------------------------------------------------------------
Date of Hearing : 18.10.2017: Date of Judgment:27.10.2017
------------------------------------------------------------------------------
DR. B.R. SARANGI, J. The petitioners, by means of this writ petition,
seek to challenging the judgment dated 20.09.2003 passed by
learned District Judge, Keonjhar in FAO No.19 of 2003 allowing
the appeal by reversing the order dated 05.07.2002 passed by
the Authorized Officer to confiscate the seized vehicle bearing
2
registration no.OR-06-1535 and the manganese ore to the
Government under Section 56 of the Orissa Forest Act, 1972.
2. The factual matrix of the case, in brief, is that in the
night of 10.08.2002 the Forester of Joda Section of Champua
Range, while performing night patrolling inside Baitarani
reserve forest accompanied by other forest guards, detected a
dumper bearing registration no.OR-06-1535 carrying
manganese ore. So, they chased the dumper and seized it along
with the manganese ore, though its driver managed to escape.
Ultimately, the seized vehicle along with manganese ore, which
was being transported without any authority of law, construing
the same to be the forest produce, was produced before the
Authorized Officer-cum-Assistant Conservator of Forests,
Keonjhar Division, who initiated confiscation proceeding under
Section 56 of the Orissa Forest Act, 1972.
On being noticed, the opposite party appeared before
the Authorized Officer and denied his involvement in the case.
He specifically contended that transportation of manganese ore
from the reserve forest did not amount to commission of forest
offence either under the Orissa Forest Act, 1972 or Rules made
thereunder. But the Authorized Officer, after giving due
3
opportunity, by order dated 05.07.2002 coming to hold, that
such action amounts to commission of forest offence under
Section 27 of the Orissa Forest Act, 1972 and Rules 4 and 12 of
the Orissa Timber and Other Forest Produce Transit Rules,
1980, directed for confiscation of seized dumper and manganese
ore to the Government. Against the said order of the Authorized
Officer, the opposite party preferred appeal (FAO No. 19 of 2003)
under sub-section (2-e) of Section 56 of the Orissa Forest Act,
1972 before the learned District Judge, Keonjhar, who, relying
upon the judgment of this Court in OJC Nos.15947 of 2001,
14011 of 2001 and 15948 of 2001, wherein it has been held
that manganese ore does not come within the definition of forest
produce, by judgment dated 20.09.2003 set aside the order of
confiscation passed by the Authorized Officer. Hence this
application.
3. Mr. D.K. Pani, learned Additional Standing Counsel
for the petitioners-State vehemently urged that manganese ore,
being a "mineral" within the meaning of Section 2(g)(ii)(d), is a
"forest produce" and the same having been excavated from the
reserve forest area and transported therefrom without any valid
permit, the opposite party has committed forest offence and is
4
thus liable for punishment. As such, the seized vehicle
including the forest produce is liable for confiscation under
Section 56 of the Orissa forest Act, 1972. But, however, learned
District Judge, Keonjhar has committed gross error by holding,
that the manganese ore excavated and transported from reserve
forest area is not a "forest produce", and reversing the order of
confiscation passed by the Authorized Officer, which is
absolutely misconceived, and therefore, interference of this
Court is warranted.
4. Although Mr. B.K. Kar, learned counsel along with
his associates entered appearance for the opposite party, none
was present at the time of hearing. Since it is a year old case,
without giving further adjournment, the same is being disposed
of finally on perusal of the records and upon hearing learned
counsel for the petitioners.
5. In view of the factual matrix, as narrated above, the
sole question which has cropped up for consideration by this
Court is whether the manganese ore carried in the seized
dumper, being excavated from reserve forest area, can be
construed as "forest produce" and if so whether the seized
5
dumper together with manganese ore is liable for confiscation
under Section 56 of the Orissa Forest Act, 1972?
6. In order to have an effective adjudication of the case,
it is worthwhile to go through Section 2(g)(ii)(d) of the Orissa
Forest Act, 1972 which reads as follows:
"2- Definitions:
xxx xxx xxx
(g) "forest produce" includes
xxx xxx xxx
(ii) the following when found in or brought from a forest,
that is to say-
(d) peat, surface soil, rock, sand and minerals (including
limestone, laterite, mineral oils and all products of
mines or quarries);"
From the above quoted provisions, in which the meaning of
"forest produce" has been literally defined, it is clear that when
any peat, surface soil, rock, sand and minerals (including
limestone, laterite, mineral oils and all products of mines or
quarries) 'found in', or 'brought from' a forest, the same are to
be considered as "forest produce". No doubt, the manganese ore
has not been specifically mentioned in the said provision, but
fact remains whether the manganese ore comes within the
meaning of 'minerals' as specified under Section 2(g)(ii)(d). If
minerals includes manganese ore, then it is to be seen when it
is 'found in' or 'brought from' a forest and can be construed as a
"forest produce".
6
7. As per the provisions contained in Section-2(jj) of the
Mines Act (35 of 1952), "minerals" means all substances which
can be obtained from the earth by mining, digging, drilling,
dredging, hydraulicing, quarrying or by any other operation and
includes mineral oils (which in turn include natural gas and
petroleum). According to Section 2(c) of Atomic Energy Act (33 of
1962) "minerals" include all substances obtained or obtainable
from the soil including (alluvium or rocks) by underground or
surface working.
7.1 In Stonecraft Enterprises v. CIT, (1999) 3 SCC
343, it has been held by the apex Court that the word 'minerals'
occurring in Section 80-HHC 2b(ii) of Income-tax Act (43 of
1961) includes all minerals extracted from the earth including
granite.
7.2` In V.P. Pithupihai v. Special Secretary, Govt. of
T.N., (2003) 9 SCC 534, it has been held by the apex Court that
the word 'mineral' means 'a naturally occurring, homogeneous
substance or material formed by inorganic processes and having
a characteristic set of physical properties, a definite range of
chemical composition, and a molecular structure usually
expressed in a crystalline forms. Any inorganic substance, as
7
ore, a rock, or a fossil. It is also stated that a mineral as
judicially defined would mean an inorganic substance found
either on or in the earth which may be garnered and exploited
for profit.
7.3 Section-3(d) of the Mines and Minerals (Regulations
and Development) Act (67 of 1957) "minerals" includes all
minerals except mineral oils. The first Schedule Part-C Clause-9
thereof deals with manganese ore. Similarly, Section 9 deals
with royalties in respect of mining lease. Second Schedule Sl.
No.24 deals with manganese ore while the royalty has been fixed
by the authority concerned.
7.4 In view of such position, there is no iota of doubt
that manganese ore comes within the meaning of minerals as
defined in Section 3(a) of the Mines and Minerals (Regulation
and Development) Act, 1957. Applying the meaning of
"minerals", as discussed above, to the meaning attached to
Section 2(g)(ii)(d) of the Orissa Forest Act, 1972, it can be safely
construed that 'minerals' includes manganese ore.
8
8. On a plain reading of the expressions 'found in' or
'brought from' mentioned in Clause-(4) of Section 2 of the Orissa
Forest Act, 1972, there can hardly be any doubt that both of
them indicate the forest to be the source or original depository
of the forest produce in question. The term 'found in' a forest
does not necessarily require an actual discovery of those items
by a living person before those items can become forest-
produce. The term 'found in' actually refers to things growing in
a forest like timber trees, fuel trees, fruits, flowers, etc., or
mineral deposits or stones existing in the forest. The distinctive
feature is either the existence or the growth or deposit within
the area of a forest and not their discovery by some living
person. The idea underlying the expression 'brought from' is
equally emphatic of the source of the thing so brought being
within the area of a forest. The conveyance or transport involved
in the idea of a thing being brought undoubtedly has its
beginning in the forest by virtue of the use of the expression
'from'.
8.1. In Kasi Prasad Sahu v. State of Orissa and
another, AIR 1963 Orissa 24, while considering the provisions
contained in Rules 2(4), 41, 43 and 85-A of the Orissa Timber
9
and Forest Produce Transit Rules, 1958, the Division Bench of
this Court held as follows:
"On an interpretation of the expression "forest produce"
as used in the Indian forest Act, there was an implied
power in the government to regulate the transit of timber
even if it may not the property of Government."
8.2. As already stated, the materials available make it
evident that the dumper bearing registration no.OR-06-1535
was seized when it was found loaded with manganese ore
excavated from reserve forest. As such, the manganese ore
having been 'brought from' the forest, it becomes "forest
produce" within the meaning of Section 2(g)(ii)(d) of the Orissa
Forest Act, 1972. Furthermore, as the manganese ore was
being transported without any valid permit/document and
without any authority of law and more particularly, in
contravention of provisions of Rules 2(4) and 12 of the Timber
Transit Rules, 1980, the same amounts to committing forest
offence. Section-27(3)(b) of the Act makes it clear that in a
reserve forest quarries stone, burns lime or charcoal or collects,
subjects to manufacturing process or removes any "forest
produce" constituted a forest office. Since the manganese ore
was seized in the reserve forest on a loaded vehicle it also
attracts Section 73-A which provides that any person found in
10
possession of any "forest produce" within the limits of any
reserve forest shall, until the contrary is proved, be presumed to
be guilty of removing or, as the case may be, transporting such
forest produce from the reserve forest without authority.
9. Reliance placed on the order of this Court passed in
Kashinath Behera v. Officer-in-Charge (O.J.C. Nos. 15947,
14011 and 15948 of 2001) cannot have any application to the
present context as the opposite party has already been found to
be guilty of committing forest offence by removing manganese
ore which is a mineral within the meaning of Section 2(g)(ii)(d) of
the Orissa Forest Act. Therefore, learned District Judge has
committed gross error in allowing the appeal preferred by the
opposite party vide order dated 20.09.2003 in F.A.O. No.19 of
2003.
10. In the aforesaid facts and circumstances, this Court
is of the considered view that the order dated 20.09.2003
passed by the learned District Judge, Keonjhar in F.A.O. No.19
of 2003 cannot sustain in the eye of law. Accordingly, the same
is hereby quashed and consequentially, the order dated
05.07.2002passed by the Authorized Officer-cum-Assistant 11 Conservator of Forests, Keonjhar Division, Keonjhar in O.R. Case No.21 Ch of 2002-2003 is restored.
11. The writ petition is accordingly allowed. No order as to cost.
Sd/-
DR. B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 27th October, 2017, Alok True copy P.A.