Jharkhand High Court
Arun Kumar Agarwal vs State Of Jharkhand And Ors. on 25 March, 2004
Equivalent citations: AIR2005JHAR32, 2004(52)BLJR1003, [2004(2)JCR450(JHR)], AIR 2005 (NOC) 32 (JHA), 2004 AIR - JHAR. H. C. R. 3186, 2004 AIR - JHAR. H. C. R. 3037, (2004) 3 JCR 533 (JHA), (2004) 3 JLJR 397, (2004) 20 ALLINDCAS 328 (JHA), (2005) 1 RECCIVR 791.2, (2005) 1 HINDULR 454, 2004 (2) BLJR 1003, (2004) 2 JCR 450 (JHA), 2004 (20) ALLINDCAS 328, (2004) 2 JLJR 491
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. Heard Mrs. Ritu Kumar, learned counsel for the petitioner and Mr. R.N. Sahay, learned Standing Counsel appearing for the respondents.
2. Petitioner has challenged the notice dated 22.11.2003 issued by the Divisional Forest Officer, Dumka calling upon the petitioner to show cause as to why JCB earth removing machine used for widening the road be not confiscated for the alleged violation of Section 33 of the Indian Forest Act, 1927.
3. The admitted facts are that petitioner company was allotted construction work by the State of Jharkhand for widening and strengthing Dumka-Hansdiha Road from 64 kms. to 115 kms. The agreement regarding said construction on the rate approved by the Tender Committee was executed on 22.1.2003 in terms whereof construction was to be done on priority basis within a period of nine months. While the construction was going on the officers of the Forest Department came on the spot and seized the machine and arrested three of the staff including driver. However, those persons were released on personal bond. It is alleged that the officers of the Forest Department demanded handsome money which the petitioner was unable to fulfill. Since the work was to be done as per the guidelines of PWD Engineers, petitioner thereafter served lawyers notice to the Divisional Forest Officer, Dumka when the vehicle was not released. In response whereof a confiscation proceeding was initiated against the petitioner.
4. A counter-affidavit has been filed on behalf of the respondents Road Construction Department wherein it is stated that construction work for widening the road was allotted and the Road Construction Department issued guidelines in this regard. It is further stated that due to seizure of the JCB Machine, progress of road construction work for Dumka-Hansdiha road has been hampered.
5. In a separate counter-affidavit filed by the Officers of the Forest Department, it is stated that the machine was legally seized by the Forest officials as the Forest offence has been committed by the petitioner respondents case is that while widening and strengthing the road the Officers of the Forest Department was informed that great damages being caused to the Afforestation work which has been done on the road side plantation. In this regard several letters were written to the Executive Engineer, Road Construction Department requesting to furnish details of the work being done. Respondents further case is that the Dumka-Hansdiha road side plantation and fencing poles have been damaged and around 2000 plants have been damaged.
6. From perusal of Annexure-3, which is letter dated 9.5.2002 issued under the signature of Engineer-in-Chief-cum-Special Secretary, Road Construction Department, Government of Jharkhand, it appears that by the aforesaid letter a general direction was issued that plantation besides the road which shall be done after leaving six meters from each side of the road. A copy of the said letter was sent to the officials of the Forest Department, Dumka. Reminders to that effect were again issued when in several places new plantation and barbed wire fencing were made near to the road by not obeying the guidelines given by the Engineer-in-Chief.
7. The only question therefore that falls for consideration is to whether the impugned notice for initiation of confiscation proceeding for the alleged commission of offence under the Forest Act is justified. For better appreciation, paragraph 6, 8 and 10 of the counter-affidavit filed by Forest Officials are reproduced herein below :--
Para 6.--"That the deponent states that vide memo dated 6.2.2003 issued under the signature of Range Officer of Forest, (Respondent No. 7) Hisla West Range, Dumka, addressed to Executive Engineer, Road Division Deoghar, whereby and whereunder it was informed that great damages being caused to the afforestation work which has been done the road side plantation commencing from Laljhari Road to Basuki Nath and it was also found that fencing post has been damaged as a result whereof several plants have also died under the debris of soil. Accordingly, request was made to conduct the work after preserving and protecting the right side plantation/and afforestation work done by the Forest Department. On similar application was also sent by letter No. 153, dated 7.2.2003 to the Divisional Forest Officer, Dumka explaining him the entire facts and to take proper action so that the Executive Engineer, Road Division, Deoghar may take appropriate action for stopping the damage of the road-side plantation work.
Para 8.--That I state that again vide No. 1324 dated, 4.4.2003 issued under my signature and addressed to Executive Engineer, Deoghar, whereby it was informed that till date no action has been taken for repairing the damages caused to the fencing work as a result whereof the animals are grazing the entire afforestation work. It was also stated that the repair work of poles which were done by the concerned Range Officer have again been damaged by the Contractor. Accordingly, a request was made to take proper action so that the afforestation work, of road side plantation could be protected.
Para 10.--That it state that vide letter No. 778, dated 17.7.2003 issued under the signature of Respondent No. 7 Range Officer of Forests addressed to Divisional Forest Officer, Dumka, wherein it was informed that in the Dumka, Deoghar, road side plantation work approximately 7500 fencing poles have been damaged and consequently around 2000 plants have been damaged. Therefore, it is essential to make necessary repairs for stopping further damages to the already existing plants and in place of died plants no plantation should have been done. List showing damages to the extent of Rs. 3,54,505.20 which has been done by the concerned contractor in road side plantation work is annexed.
8. Admittedly, therefore, it is not the case where the petitioner has been cutting and removing the trees and/or doing any mischief with the forest land for their personal benefits. The work allotted to the petitioner was for widening and strengthing of the road 2 meters each from both the sides and in course of widening of the road, if some damages are caused to the newly growing plants that will not constitute forest offence and thus the machine used for the execution of the work could not have been seized by the officials of the Forest Department. At best the Forest Department may claim damages either on the petitioner or from the Road Construction Department for the alleged damages caused to the plantation. I am, therefore, of the opinion that seizure of the machine and notice for initiation of confiscation proceeding is wholly arbitrary and without jurisdiction.
9. For the aforesaid reason, this writ application is allowed and the impugned notice is quashed.