Jharkhand High Court
Parmanand Pandey & Anr. vs State Of Jharkhand & Ors.Ors. on 13 September, 2012
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
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W.P.(C) No.5740 of 2001
(In the matter of an application under Articles 226 and
226 of the Constitution of India)
Parmanand Pandey & Anr. .......... Petitioners.
Versus
The State of Jharkhand & Ors. .......... Respondents.
For the Petitioners : M/s. Deepak Kumar and
Alok Lal, Advocates
For the State : Mr. Ajit Kumar, AAG
P R E S E N T
HON'BLE MR. JUSTICE NARENDRA NATH TIWARI
BY COURT: The petitioners have assailed the order dated 26th February,
1996 (Annexure5) passed by the Divisional Forest Officer, Social
Forestry Division, Sahibganj, whereby the petitioners' truck,
bearing Registration No.BRK 8565, crusher machine, electric
motor and diesel engine have been confiscated for committing
forest offence and mining stone in violation of Forest
(Conservation) Act, 1980. The petitioners have further prayed for
quashing the order dated 20th February, 1998 (Annexure6)
passed by the Deputy Commissioner, Sahibganj in R.M.A. No.10
of 199697, whereby the petitioners' appeal has been dismissed
and also for quashing the order dated 21st May, 2001
(Annexure2) passed by the Secretary, Ministry of Forest and
Environment, Government of JharkhandcumRevisional
Authority, whereby the petitioners' revision has been dismissed.
2. The facts of the case, in brief, is that on 3rd December, 1995
at 3.40 p.m., the Authorized Officer of Taljhari Range along with
other forest staff and armed forces led by Sub Inspector of Police
arrived at Plot No.163 of Mouja Kalyani and seized crusher
machine, truck bearing Registration No.BRK 8565, electric motor,
diesel engine, stone challies etc., besides other articles of some
other persons for committing forest offence and mining stone
within the forest area, declared as 'reserved forest'. A, report was
prepared and forwarded and on the basis of the said report,
Confiscation Proceeding No.4 of 199596 was initiated. In course
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of investigation, it was found that the truck bearing Registration
No.BRK 8565 belonged to Petitioner No.1. He was made Accused
No.2. Notices were served on both the petitioners. After
considering their reply, the Divisional Forest Officercum
Authorized Officer passed order on 26th February, 1996 for
confiscation of the seized articles.
3. Against the said order, the petitioners filed appeal before
the Deputy CommissionercumAppellate Authority. The said
appeal was registered as R.M.A. No.10 of 199697. Learned
Deputy Commissioner dismissed the appeal vide order dated
20th February, 1998.
4. The petitioners, thereafter, preferred writ petition, being
CWJC No.441 of 1997, challenging the said order. The writ
petition was disposed of, directing the District Forest Officer and
the District Mining Officer to make a fullfledged enquiry and
submit a report to the Collector.
5. In accordance with the said order, a joint enquiry was
conducted by the District Forest Officer and District Mining
Officer and the report was submitted to the Collectorcum
Appellate Authority on 19th June, 1997.
6. Learned Appellate Authority considered the said enquiry
report and dismissed the petitioners' appeal by order dated 20th
February, 1998 (Annexure6).
7. The petitioners, thereafter, preferred revision before the
Secretary, Ministry of Forest and Environment, Government of
JharkhandcumRevisional Authority, who vide order dated 21st
May, 2001 dismissed the petitioners' revision.
8. The petitioners, feeling aggrieved, filed the instant writ
petition, challenging those orders and also praying for release of
their confiscated articles.
9. According to the petitioners, the impugned orders are
wholly arbitrary, illegal and without jurisdiction and the same are
liable to be quashed.
10. Learned counsel for the petitioners submitted that the
petitioners have not carried out any nonforest activity over Plot
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No.163. The petitioners have their raiyati land, being Plot No.212
of Mouja Kalyani. They were granted mining lease over Plot
No.163 of Kalyani in the year 1970 with the clause of renewal up
to 20th June, 2000. At the relevant time the petitioners' lease was
subsisting. The petitioners were holding valid lease and were
carrying out mining operation since much before coming into
force of Forest (Conservation) Act, 1980. Any restriction imposed
by virtue of the provisions of the said Act was not applicable on
the petitioners. No forest offence either under the Indian Forest
Act or under the Forest (Conservation) Act, 1980 has been
committed by them. The petitioners' articles were seized under
the provision of Section 52 of the Indian Forest Act and were
confiscated by the impugned orders. Since the petitioners have
not committed any forest offence, the entire seizure is wholly
illegal and arbitrary.
11. Learned counsel for the petitioners submitted that there is
no material or evidence on record to establish that the
petitioners have committed any forest offence. Plot no.163 of
Mouja Kalyani was under lawful possession of the petitioners by
virtue of the lease granted by the Government up to 2000. The
lease was granted long back in the year 1970, whereas the
Forest (Conservation) Act, 1980 came into force much thereafter
by which restriction of mining etc. in the forest land was imposed
under the provisions of Section 2 of the said Act. Learned
counsel submitted that mining lease, covering forest area,
granted prior to commencement of the Forest (Conservation)
Act, does not attract the provision of Forest (Conservation) Act,
1980.
12. Learned counsel referred to and relied upon the decision
of the Hon'ble Supreme Court in State of Bihar Vs. Banshi Ram
Modi & Ors. [AIR 1985 SC 814]. He submitted that while
interpreting Section 2 of the Forest (Conservation) Act, 1980, it
has been held that expression "nonforest purpose" as used in
Section 2 means breaking up or clearing of any forest land or
protection thereof for any purpose other than reafforestation or
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regeneration of forests. The lessee carrying on mining operations
cannot be allowed to break up or clear any forest land or
portion thereof in pursuance of mining lease granted in the
lessee's favour. Hon'ble Supreme Court further held that the
forest area, which was already utilized for nonforest purpose by
carrying out mining operation before commencement of the
Act does not attract Section 2 and prior approval of the Central
Government is not necessary for the purpose of carrying out
mining operation.
13. Learned counsel further submitted that the respondents
have failed to bring any cogent material or evidence on record
to establish that the petitioners have committed any forest
offence. Entire proceeding was incompetent and wholly without
jurisdiction. The Divisional Forest Officer as well as the Appellate
Authority and the Revisional Authority without taking into
consideration the facts and materials on record and provision of
law have arbitrarily held the petitioners guilty of violating the
provisions of Forest (Conservation) Act, 1980 and has arbitrarily
confiscated/upheld the order of confiscation of the petitioners'
said properties. The orders are without any legal basis and are
unsustainable.
14. The writ petition has been contested by the respondents,
stating, inter alia, that Plot Nos.153, 154 and 163 of Mouja Kalyani,
Circle Taljhari, District Sahibganj were declared as protected
forest by Notification No. 4844 dated 2nd November, 1894 issued
by the Government of Bengal under the Indian Forest Act, 1878.
The forest was again notified as reserved forest by notification
dated 25th February, 1946 issued under Section 4 of the Indian
Forest Act, 1927. The Government of Bihar subsequently notified
21000 acres of land as forest including the said land under
Section 20 of the Indian Forest Act, 1927 and a notification to
that effect was issued on 28th May, 1993. In CWJC No.7076 of
1994 (Mahabir Prasad Chirania Vs. State of Bihar), Patna High
Court vide its order dated 7th September, 1995 upheld the said
notification.
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15. In view of the said decision, the Divisional Forest Officer,
Sahibganj had issued notice dated 26th September, 1995 to the
petitioners, asking them to stop nonforest activity on the forest
land and to remove all materials, including vehicles, building etc.
from the forest land immediately. The petitioners in spite of
service of notice did not stop the mining work on the forest land.
The respondents conducted a raid and seized the vehicles,
crusher machine, electric motor, diesel engine etc. The
confiscation proceeding was, thereafter, initiated under Section
52 (Bihar Amendment) of the Indian Forest Act. The Forest
OfficercumDivisional Forest Officer passed order dated 26th
February, 1996 for confiscation of the said articles. The petitioners
assailed the said order before the Appellate Authoritycum
Deputy Commissioner, Sahibganj. The Appellate Authority
upheld the order of the Divisional Forest Officer. The petitioners,
thereafter, preferred writ petition, being CWJC No.441 of 1997.
The said writ petition was disposed of by order dated 8th April,
1997, directing the District Forest Officer and District Mining
Officer to hold joint enquiry and submit a report to the Deputy
Commissioner. Accordingly, report was submitted. On the basis
of the report, the Deputy Commissioner upheld the order of
confiscation. The petitioners, thereafter, preferred revision, which
was also dismissed after taking into consideration the facts and
materials on record and submissions of the parties. The orders of
the Appellate Authority and Revisional Authority are well
considered and the same did not warrant any interference in
writ jurisdiction of this Court.
16. Mr. Ajit Kumar, learned Additional Advocate General,
appearing on behalf of the respondents, submitted that though
it is not disputed that the petitioners were holding the lease over
Plot No.163 since much prior to the date of commencement of
the Forest (Conservation) Act, 1980, but that does not absolve
the petitioners from restrictions imposed in Section 2 of the said
Act. Restriction is for grant of fresh lease as also renewal of lease.
The petitioners' lease appears to be renewed without prior
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permission of the Central Government and the same was
violative of the provisions of Section 2 of the said Act. Any non
forest activity without prior permission of the Central Government
is, thus, forest offence and the petitioners are liable for the
consequence as provided under Section 52 (Bihar Amendment)
of the Indian Forest Act. Learned counsel submitted that object
of the Forest (Conservation) Act is conservation of forest and
protection of environment. The said object also applies to the
subsisting lease of the forest land. After commencement of the
Forest (Conservation) Act in 1980 carrying out mining operation
on Plot No.163 by the petitioners comes within the expression of
nonforest use which was not permissible without prior approval
of the Central Government.
17. I have heard learned counsel for the parties and
considered the facts and materials on record. In the instant
case, some relevant facts are not disputed. It is not in dispute
that the petitioners were granted mining lease on Plot No.163 of
village Kalyani in the year 1970 and they have been mining stone
in the said plot since much before coming into force of the Forest
(Conservation) Act, 1980. It is also not in dispute that the orders of
the Authorized Officer as well as the Appellate Authority were
quashed by this Court, directing a joint enquiry by the Divisional
Forest Officer and the District Mining Officer in CWJC No.441 of
1997. It is also not in dispute that in the enquiry report no definite
finding was recorded regarding place from where the articles
were seized.
18. The petitioners have categorically denied the allegations
of committing any forest offence, whereas the petitioners'
articles have been seized and thereafter confiscated under
Section 52 (Bihar Amendment) of Indian Forest Act on the
ground of committing forest offence. The offence, as alleged, is
that the petitioners were involved in mining activity/nonforest
activity within the area of reserved forest.
19. Since the allegation has been denied by the petitioners,
the prosecution/respondents had to establish that the petitioners
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had committed forest offence.
20. ChapterII of the Indian Forest Act prescribes provision
relating to constitution of reserved forest and other related
matters. Section 4 of the said Act provides for notification by the
State Government regarding its decision to constitute any land
as reserved forest by publishing the same in the official gazette.
The said notification has to be followed by the proclamation by
Forest Settlement Officer (Section 6) and enquiry by Forest
Settlement Officer (Section 7); Section 8 deals with the powers of
Forest Settlement Officers, Section 9 with extinction of rights and
Section 10 treatment of claims relating to practice of shifting
cultivation; Section 11 gives power to acquire land over which
right is claimed and Section 12 for order on claims to rights of
pasture or to forest produce. Appeal from order passed under
Sections 11, 12, 15 & 16 is provided under Section 17 of the Act.
21. After the said long procedure, a notification has to be
issued under Section 20 of the said Act, declaring a forest
reserved. It, inter alia, provides that the State Government shall
publish a notification in the official gazette, specifying definitely,
according to boundary marks erected or otherwise, the limits of
the forest which is to be reserved, and declaring the same to be
reserved from a date fixed by the notification. Subsection (2) of
Section 20 specifies that from the date so fixed such forest shall
be deemed to be a reserved forest.
22. Section 21 of the said Act provides for publication of
translation of such notification in neighbourhood of forest. It says
that the Forest Officer shall, before the date fixed by such
notification, cause a translation thereof into the local vernacular
to be published in every town and village in the neighbourhood
of the forest.
23. In the instant case, no notification under Section 20 of the
said Act has been brought on record, firstly to show that the land
from where the articles were seized is part and parcel of
reserved forest in order to establish that forest offence was
committed and the petitioners were found engaged in non
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forest activity in the reserved forest area.
24. The respondents have to establish that there was a
notification declaring the land in question as reserved forest and
that the notification was published under Section 20 and the
requirement of Section 21 was complied with.
25. The Hon'ble Supreme Court in Banshi Ram Modi's case
(Supra) has clearly held that prior approval of Central
Government under the provisions of Section 2 of the Forest
(Conservation) Act, 1980 is not required for carrying out mining
operations in a forest area which is broken up or cleared before
the commencement of the Act.
26. There is nothing on record to show that on the alleged
date of violation of provision of Forest (Conservation) Act, the
plot, in question, was not broken for nonforest purpose. Further, it
is evident from the enquiry report (Annexure4) submitted after
joint enquiry by the Divisional Forest Officer and the District
Mining Officer that it was not clear that the articles were seized
from the land, in question.
27. Learned Deputy Commissioner, SahibganjcumAppellate
Authority, while passing his order, has relied on the said enquiry
report, which does not speak anything about commission of
forest offence on the land, in question. The impugned order of
the said authority is not supported by any legal evidence and is
wholly perverse. Learned Revisional Authority has also upheld the
order of the learned Appellate authority without taking into
consideration the said aspect. The revisional order is, thus, also
wholly illegal and unsustainable.
28. Article 300A of the Constitution of India clearly provides
that no person shall be deprived of his property saved by
authority of law.
29. From the above discussion, I find that the seizure of the
petitioners' articles and subsequently confiscation thereof is
without any authority of law. The impugned orders are wholly
without any legal basis and without jurisdiction.
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30. For the reasons aforesaid, this writ petition is allowed. The
impugned orders dated 26th February, 1996 (Annexure5), 20th
February, 1998 (Annexure6) and 21st May, 2001 (Annexure2) are
quashed.
31. As a consequence, the respondents are directed to
release the seized/confiscated articles to the petitioners
forthwith.
32. It has been informed that the petitioners' truck has been
auctioned and the sale proceed has been deposited in the
Treasury. Since the truck has already been sold, the respondents
shall release the sale proceed of the said truck to the petitioners
forthwith.
(Narendra Nath Tiwari, J.)
Jharkhand High Court
Ranchi
Dated 13th September, 2012
Sanjay/NAFR