Jharkhand High Court
Upendra Choudhary vs The State Of Jharkhand on 26 September, 2019
Equivalent citations: AIRONLINE 2019 JHA 1224
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.1276 of 2016
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Upendra Choudhary ......... Petitioner
Versus
1. The State of Jharkhand
2. Secretary, Forest and Environment cum Revisional Authority, State of Jharkhand at Ranchi
3. The Deputy Commissioner Cum Appellate Authority, Mohalla- Koderma,
4. Divisional Forest Officer cum confiscating officer, Mohalla-
Koderma .......... Respondents
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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Arwind Kumar, Advocate
For the Resp.-State : Mr. Sandeep Verma, Advocate
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6/26.09.2019 This writ petition is under Article 226 of the Constitution of India whereby and whereunder, the judgment dated 28.09.2012 passed in confiscation no.01/2010 by the Divisional Forest Officer cum Confiscating Officer, Koderma, by which, a Mahindra Pick-up bearing no.JH-12C 0225 along with 28 pieces of wood logs loaded there have been confiscated in favour of the State which has been affirmed by the appellate authority as also the revisional authority in the order passed on 03.07.2013 in confiscation appeal no.42 of 2012 and the revision case no.16 of 2013 dated 11.01.2016.
2. It is the case of the petitioner that a confiscation proceeding has been initiated for confiscation of truck bearing registration no.JH-12C 0225 which has been seized by the Forest Officer from the burning ghat by the Officer of the forest department for alleged commission of offence under the Forest Act for transportation of the 20 pieces of forest wood-logs and each piece was 6' long with radius 2' and 8 pieces of forest woods and each piece was 4.5' long with radius 2' in pursuance thereto, an FIR has also been instituted being Koderma (Domchanch) P.S. Case No.605/09 for commission of offence under Section 414 of the IPC and under Sections 33, 41 and 42 of the Indian Forest Act.
The petitioner after appearance on the basis of the show cause notice, has put-forth his defence denying the allegation by taking the ground that no such offence alleged to have been committed under the Forest Act rather the wood has been transported by the said vehicle for its use at burning ghat.
The Circle Officer, Koderma has supported the aforesaid contention.
3. According to the petitioner, the said wood was cut from the land which belongs to one Masomat Bhuneshwari and some of the branches are in the house of the petitioner and hence, it cannot be said that any illegal cut of the forest wood has been committed by the petitioner.
Further according to the petitioner, the aforesaid fact has not been appreciated by the Forest Officer and without any proper application of mind, the order of confiscation has been passed.
Further grievance of the petitioner is that the said plea has been agitated before the appellate as also before the revisional authority but these authorities have also declined to interfere with the original order, as such, the present writ petition has been filed.
4. Counter affidavit has been filed by the respondent-State, wherein stand has been taken by the learned counsel that there are three concurrent findings of the three consecutive authorities based upon the cogent evidence and as such, the same may not be reversed in exercising the power conferred under Article 226 of the Constitution of India.
Further submission has been made that in case of any transportation of any forest wood from anywhere, the transit permit was required to be issued by the competent authority of the forest department as per the provision made under the Jharkhand Timber & Other Forest Produce (Regulation of Transit) Rules, 2004 and if no such permission is there, it would amount to commission of offence as stipulated under Section 41 of the Indian Forest Act, 1927.
5. In view thereof, the submission has been made that the authorities while taking such decision has considered all these aspects of the matter, hence, there is no infirmity in the impugned order.
6. This Court, after having heard the learned counsel for the parties and after appreciating their arguments has found therefrom that the question of initiation of confiscation proceeding pertains to transportation of 28 pieces of wood-logs, which according to the respondent, have been found to be illegal, in consequence thereof, the confiscation proceeding has been initiated being Confiscation Case No.01 of 2010 as also one FIR has been instituted bearing Koderma (Domchanch) P.S. Case No.605/09 dated 10.11.2009 for commission of offence under Section 414 of the IPC and under Sections 33, 41 and 42 of the Indian Forest Act.
Section 33 of the Indian Forest Act provides penalties for acts in contravention of notification under Section 30 or of rules under Section
32. It appears from Section 33(1) that if any person who commits any of the following offences, namely:-
(a) Fells, girdles, lops, taps or burns any tree reserved under section 30, or strips off the bark of leaves from, or otherwise damages, any such tree;
(b) Contrary to any prohibition under section 30, quarries any stone, or burns any lime or charcoal or collects, subjects to any manufacturing process, or removes any forest-produce;
(c) Contrary to any prohibition under section 30, breaks up or clears for cultivation or any other purpose any land in any protected forest;
(d) Sets fire to such forest, or kindles a fire without taking all reasonable precautions to prevent its spreading to any tree reserved under section 30, whether standing, fallen or felled, or to any closed portion of such forest;
(e) Leaves burning any fire kindled by him in the vicinity of any such tree or closed portion;
(f) Fells any tree or drags any timber so as to damage any tree reserved as aforesaid;
(g) Permits cattle to damage any such tree;
(h) Infringes any rule made under section 32;
Shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
It is evident from the provision as contained under Section 33(1)(f) which stipulates that fells any tree or drags any timber so as to damage any tree reserved as aforesaid.
Section 41 provides power to make rules to regulate transit of forest-produce while section 42 provides penalty for breach of rules made under section 41.
7. The State of Jharkhand in pursuance to the provision as contained under Section 41 has formulated a Rule known as Jharkhand Timber & Other Forest Produce (Regulation of Transit) Rules, 2004, wherein, in pursuance to the provision of Sections 3 and 4, the requirement has been stipulated to obtain a valid permission by way of permit challan from the competent authority of the forest department in case of transportation of any wood from one place to another.
8. Herein, the vehicle in question while transporting 28 pieces of wood-logs has been intercepted by the concerned police authority, in consequence thereof, an FIR has been instituted and the same was reported to the competent authority of the forest department.
9. The petitioner has defended the allegation by submitting that the land from where the said wood was cut, does not belong to any forest area rather it has been cut from the private land of one Masomat Bhuneshwari and was being transported to be used in the burning ghat.
10. Even accepting the said argument to be true but even then as per the Rules enacted by the State of Jharkhand in pursuance to the power conferred under Section 41 of the Indian Forest Act, 1927, the requirement of valid permission for transportation of the wood is required to be obtained.
11. As would appear from the prosecution report that the police has apprehended the said vehicle at Domchanch-Dhab Main Road near Mahespur-Jaruadih Village at 8:40 PM and on demand, no paper was produced which resulted to the seizure of the forest produce along with the vehicle.
12. The prime question which was considered by the original authority that admittedly no challan was available at the time when the vehicle was intercepted showing the illegal transportation of the forest produce loaded over there and therefore, conclusion has been arrived at for commission of the offence.
The same has been affirmed by the appellate as also the revisional authority.
13. All these three orders have been sought to be quashed by this Court in exercising the power conferred under Article 226 of the Constitution of India by issuing writ of certiorari.
14. The basic principle for issuance of writ of certiorari is that an error apparent on the face of record, is to be appreciated while exercising the aforesaid jurisdiction or the question of jurisdictional error.
15. It is not in dispute that while exercising the power of writ of certiorari, the High Court has got very limited power to the effect as indicated hereinabove as has been decided in the case of Syed Yakoob Vrs. Radhakrishnan reported in A.I.R. 1964 477 Supreme Court, wherein at paragraph no.7 their Lordships have been pleased to 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 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.
16. This Court in view of the aforesaid legal position and taking into consideration the factual aspect involved in this case more particularly after considering the three concurrent findings of the three consecutive authorities based upon the cogent evidence, is not inclined to interfere by appreciating the evidence otherwise the Court of Writ will become Court of Appeal.
17. In view thereof, impugned order needs no interference by this Court, accordingly, the writ petition fails and hence it is dismissed.
18. In consequence thereof, I.A.No.6746 of 2017 stands disposed of.
(Sujit Narayan Prasad, J.) Rohit/-