Gujarat High Court
Alam Shakil Husenbhai vs Deputy Forest Conservator & on 9 September, 2014
Author: G.B.Shah
Bench: G.B.Shah
C/SCA/8317/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8317 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ? Yes
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ? No
5 Whether it is to be circulated to the civil judge ? No
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ALAM SHAKIL HUSENBHAI....Petitioner(s)
Versus
DEPUTY FOREST CONSERVATOR & 1....Respondent(s)
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Appearance:
MR NAVIN K PAHWA FOR M/S THAKKAR ASSOC., ADVOCATE for the
Petitioner(s) No. 1
MR MR KL PANDYA, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 09/09/2014
ORAL JUDGMENT
[1] This petition under Article 226 of the Constitution of India has been filed seeking relief to quash and set aside order dated 562014 Page 1 of 14 C/SCA/8317/2014 JUDGMENT passed by respondent No.1 and to release the truck No.GJ17X7611 in favour of petitioner.
[2] Facts in short are that the petitioner is the owner of truck bearing registration No.GJ17X7611 which he purchased from Shri Arvindbhai Keshubhai Patel on 622012. The petitioner is engaged in the business of transportation of dolomite power and miscellaneous products to Surat and Valsad and also giving the truck on rent. On 232014, one Shri Bachubhai Kaljibhai Rathva took the said truck on rent for transportation of goods. However, as the said truck was found to be carrying Nilgiri woods from forest area, it was detained by respondent No.2 at Bandi Village. A complaint in this regard was registered against the petitioner and said Bachubhai Kaljibhai Rathva for the offences punishable under Sections 53, 55 and 61(a) to 61(g) of the Indian Forest Act, 1927 ('the Act' for short) and their statements were recorded on 332014 in which the petitioner showed voluntariness to pay fine and to release the vehicle. However, a show cause notice dated 342014 was issued by respondent No.1 asking as to why the truck in question should not be vested in the Government. A reply was given by the petitioner on 742014 denying any involvement in the offence and reiterating his willingness to pay the penalty for releasing the vehicle and to compound the offence. The petitioner made representation on 2 52014. Since there was no response, the petitioner preferred Special Civil Application No.7142 of 2014. Said petition was disposed of directing to decide the representation in accordance with law within 10 days. However, instead of deciding the said representation, the impugned order was passed without affording any opportunity of hearing. Hence, the present petition under Article 226 of the Constitution of India.
Page 2 of 14C/SCA/8317/2014 JUDGMENT [3] Heard learned advocate, Mr.Navin Pahwa for M/s Thakkar
Associates for the petitioner and learned AGP, Mr.K.L.Pandya for the respondents.
[4] Learned advocate, Mr.Navin Pahwa for the petitioner , submitted that the respondent No.1 authority has power to confiscate the vehicle under Section 61A of the Act in certain cases where the Forest Officer believes that the offence is committed by the accused i.e. the petitioner herein. According to him, in the present case, the petitioner has not committed any offence under the Act and therefore, ordering to vest the vehicle with the Government is without jurisdiction. He further submitted that though respondent No.1 authority was directed to decide the representation/application of the petitioner and though the petitioner showed willingness to pay penalty to release the vehicle and to compound the offence, impugned order of vesting the vehicle in the Government is passed which is beyond the jurisdiction. Drawing my attention towards Section 68 of the Act, he submitted that case of the petitioner squarely falls within the purview of Section 68 as no direct involvement of the petitioner is revealed and the only fault of the petitioner was that he had not taken much care while giving the truck on rent. He further submitted that in a similarly situated case of Case No.2/201314, respondent No.1 has released the vehicle vide order dated 25102013. It is, therefore, prayed that impugned order be quashed and set aside and truck be released by imposing some penalty. In this connection, he relied on a decision of this Court in the case of Rishikesh R.Shahi Vs. State of Gujarat Thro. Secretary and Ors reported in 2012(3) G.L.H. 837.
[5] Learned AGP, Mr.Pandya, for the respondents submitted that the impugned order has been passed by the respondent No.1 authority after taking into the facts and circumstances of the case and also considering Page 3 of 14 C/SCA/8317/2014 JUDGMENT that truck bearing registration No. GJ17X7611 belonging to the ownership of the petitioner was carrying Nilgiri woods from forest area and was involved through one Bachubhai Kanjibhai Rathva and therefore, as per provision of Section 52(1) of the Act, the said vehicle was seized. Showcause notice under Section 61B of the Act was issued and after considering the reply given against the said showcause notice given by the petitioner and after hearing the petitioner, the Deputy Conservator of Forestrespondent No.1, in exercise of powers under Section 61A(1),(2) of the Act has passed the detailed impugned order after having satisfied that forest offence has been committed by the petitioner and the truck of the petitioner has been vested with the Government and thus, according to him, he has not committed any jurisdictional error.
[5.1] He then submitted that on a plain reading of the provision of Section 68 of the Act, it clearly appears that it is a discretion of the Forest Officer whether to compound or not and as such it is not mandatory on the part of said official always to compound the offence. The Legislature has introduced new Section61 of the Act with definite object behind it to pluck all possible loop holes and to prevent ever increasing menace of illegal and ruthless exploitation of the Government forest and the flimsy ground raised by the petitioner was required to be rejected and accordingly, it has been rejected.
[5.2] Referring to Section 61D of the Act, the learned AGP submitted that if the petitioner is aggrieved by the impugned order, the remedy under Section 61D is available by way of Appeal before the Hon'ble Sessions Judge and therefore, this Court exercising jurisdiction under Article 226 of the Constitution of India may not interfere in the present petition.
Page 4 of 14C/SCA/8317/2014 JUDGMENT [6] Considered the submissions made by the learned advocates for the respective parties and also the order impugned together with the
decision relied on by the learned advocate for the petitioner. Before entering into merits or demerits of the case, the chronological events which had taken place are as under:
Date Events 02/03/2014 Bachubhai Kaljibhai Rathwa took the truck in question from the petitioner on rent for one day. The said truck was detained by respondent No.2 at Bandi village on the ground that truck was carrying Nilgiri woods from forest area.
02/03/2014 Statement of Bachubhai Kaljibhai Rathwa was recorded. 03/03/2014 Petitioner was called and he remained present before respondent No.1 and his statement was recorded.
03/03/2014 Statement of Bhikhabhai Mohanbhai Rathwadriver of the truck in question was recorded.
04/03/2014 Statements of labourers were recorded. 06/03/2014 Statement of Vishnubhai Hirabhai Rathwa resident of Bandi villagee was recorded.
03/04/2014 Showcause notice was issued by respondent No.1 07/04/2014 Petitioner filed reply against showcause notice dated 3.4.2014 02/05/2014 Petitioner once again requested the respondent No.1 to release the truck in question.
07/05/2014 Being aggrieved by inaction on the part of respondents, the petitioner was constrained to file Special Civil Application No.7142 of 2014.
08/05/2014 This Court disposed of the petition directing respondent No.1 to decide the application of the petitioner dated 7.4.2014 in accordance with law as expeditiously as possible and preferably within a period of 10 days from the date of receipt of the said order.
12/05/2014 The petitioner served the order dated 8.5.2014 passed by this Court to the respondent Nos.1 and 2.
05/06/2014 The respondent No.1 instead of deciding the application of the petitioner dated 7.4.2014 as per direction of this Court, passed the impugned order without dealing with Page 5 of 14 C/SCA/8317/2014 JUDGMENT the contention of the petitioner for compounding offence. 13/06/2014 Filed this petition.
[6.1] From the above events, it is clear that after detention of the truck in question, it took more than three months in passing the first order dated 5.6.2014. It is the common knowledge that keeping the vehicle open to sky for a long period of time will definitely reduce the vehicle to a scrap. It is not under dispute that after detention of the vehicle in the case on hand on 2.3.2014, it was placed in the compound of JetpurPavi Range. While dealing with the seized vehicles from time to time by the police either Government or any official in commission of various offences or abandoned vehicles or vehicles which are recovered during investigation of complaint of theft, the Hon'ble Supreme Court and this High Court quite often observed that, it is of no use to keep such seized vehicles at the police stations or in any compound of Government building for a longer period. Such official should pass appropriate orders immediately by taking appropriate bond and guarantee as well as security for return of said vehicles, if required at any point of time and it can be done pending hearing of applications for return of such vehicles. While deciding Letters Patent Appeal No.1168 of 2012 in case of Rishikesh R. Shahi (Supra), the Division Bench of this Court almost on the similar issue had ordered to handover custody of vehicle to its registered owner. It is important to note that the Division Bench has also considered earlier decisions rendered by Hon'ble Supreme Court in case of Sundarbhai Ambalal Desai V. State of Gujarat reported in AIR 2003 SC 638 as well as Smt.Basavva Kom Dyamangouda Patil V. State of Mysore reported in (1997) 4 SCC 385. Para17 of Rishikesh R. Shahi (Supra) reads as under: "17. If the Rules of 2005 empowers an authorized officer to seize a vehicle on the ground of contravention or breach of other Page 6 of 14 C/SCA/8317/2014 JUDGMENT provisions of the Rules, then at the same time, it is also expected of the concerned Department to keep the vehicle in a safe custody and in a manner to ensure that the vehicle is not damaged, but it is a matter of common knowledge that as and when vehicles are seized and kept in the open office premises of the Department, not only they occupy substantial space of the office premises of the Department, but upon being kept in open, are also prone to fast natural decay on account of weather conditions. Even a good maintained vehicle loses its road worthiness if it is kept stationary in the Police station or other places for more than fifteen days. Apart from the above, it is also a matter of common knowledge that several valuable and costly parts of the said vehicles are either stolen or are cannibalised so that the vehicles become unworthy of being driven on road. Ultimately, if the Department fails to make out any case and the confiscation proceedings are dropped, then under such circumstances, even if the vehicle is returned to the owner, it will not serve any good purpose because of extensive damage being already caused to such vehicles. To avoid all this, Rules provide for release of the vehicle on execution of a bond.
Rule 18 of the Rules, 2005, as referred to above, enables the authorised officer to provide for interim custody of such property, pending conclusion of the confiscation proceedings, or any other enquiry. It is only a temporary arrangement, and what is contemplated is, only an interim provision to provide custody with a proper person as the authorised officer thinks fit, with liability to produce the property back as and when directed by the authorised officer. The maximum duration of the arrangement is only till conclusion of the confiscation proceedings, or any other enquiry. It follows that the arrangement is only temporary and the main object is to protect or preserve the property, pending the confiscation proceedings. Even if the person entrusted with the interim custody is the owner, his possession or custody during the period of entrustment is only as representative of the authorised officer, and not in his independent right. He is bound by the terms of entrustment and the bond executed by him in favour of the authorised officer. His ownership or right to possession may not operate against his obligation to the Department. The entrustment or custody will not invest him with any preferential right to ownership or even possession. In the eye of law, his possession or custody is only that of the authorised officer of the Department. What is stated above does not mean that the power of the authorised officer is arbitrary. Even though the power is Page 7 of 14 C/SCA/8317/2014 JUDGMENT discretionary, it has to be exercised in a judicious manner. Whenever such application for interim custody of the vehicle is preferred, the authorized officer is obliged to take into consideration many other factors, over and above the contravention which is alleged. While deciding such an application, the authorised officer's main concern should be to protect or preserve the property, pending the confiscation proceedings or any other enquiry. An application under Rule 18 of the Rules, 2005 could not be rejected only on the ground that the owner of the vehicle is alleged to have committed breach of the Rules. If that be the only consideration, then the object with which Rule 18 of the Rules, 2005 has been enacted, would get frustrated. The authorised officer is obliged to keep the object of Rule 18 of Rules, 2005 in mind while deciding the application. In the present case, we have noticed that the Collector, Surat, being the authorised officer under the Rules of 2005, took into consideration only the fact that the petitioner being the owner of the vehicle, was trying to transport the sand outside the State of Gujarat and has past antecedence. The Collector, Surat failed to consider the consequences of keeping the vehicle idle at an open place for months together pending the confiscation proceedings, and also failed to consider that the vehicle is prone to fast natural decay on account of weather condition. Such being the position, we are of the opinion that the authorised officer failed to exercise his discretion in a judicious manner. The discretion has to be exercised judiciously and not as per the whims and caprice of the authorised officer."
[6.2] It is to be noted that in the case on hand, the respondent No.1 failed to consider the consequences of keeping the vehicle idle at an open space and as he allowed to remain the truck in question unused, definitely it will become junk. As referred above, the present petitioner has preferred Special Civil Application No.7142 of 2014 on 07.05.2014 which he was constrained to file because of inaction on the part of respondent No.1 to take decision related to truck in question. The order passed by this Court on 08.05.2014 in the said Special Civil Application No.7142 of 2014 reads as under: "1. By filing the present petitioner under Article 226 of the Constitution, the petitioner has prayed the following prayers.
Page 8 of 14C/SCA/8317/2014 JUDGMENT "8(A) Your Lordships be pleased to issue an appropriate writ, order or direction directing the respondent authorities to forthwith release the truck bearing Registration No.GJ17X7611 in favour of the petitioner on such terms and conditions as may be deemed fit and proper by this Hon'ble Court, in the interest of justice.
(B) Your Lordships be pleased to direct the respondent authorities to forthwith release the truck bearing Registration No. GJ17 X7611 in favour of the petitioner on such terms and conditions as may be deemed fit and proper by this Hon'ble Court, pending the admission, hearing and final disposal of this petition;
(C) Your Lordships be pleased to pass such other and further orders as may be deemed fit by this Hon'ble Court in the interest of justice."
2. I have heard learned Advocates appearing for the parties.
Considering the facts and circumstances of the case, if the following order is passed, the ends of justice would be met.
"The respondent No.1-Deputy Forest Conservator, Chhota Udepur, is hereby directed to decide the application dated 7.4.2014 of the petitioner in accordance with law as expeditiously as possible preferably within a period of 10 days from the date of receipt of this Order. This Court has not gone into the merits of the case."
3 In view of the above observations, Mrs Sangita Pahwa, learned Advocate, appearing for the petitioner, does not press this petition. Petition stands disposed of accordingly. DS is permitted."
[6.3] Referring to the above order, it is clear that while passing the above order dated 8.5.2014, this Court has directed to decide the issue in question as expeditiously as possible and preferably within a period of 10 days from the date of receipt of the said order. It is not under dispute that respondents have received the said order dated 8.5.2014 as well as 1 to 55 pages mentioned therein on 12.5.2014. As the said order was not complied with, Contempt Petition being Misc. Civil Application No.1802 Page 9 of 14 C/SCA/8317/2014 JUDGMENT of 2014 was filed by the petitioner. However, the impugned order was passed after 24 days i.e. on 5.6.2014 and hence, the said Contempt Petition was withdrawn on 9.7.2014 with a liberty to challenge the order before appropriate forum. No satisfactory and convincing explanation for delay has been forthcoming on record. Even while passing the impugned order, the respondent No.1 has not thought it fit to write one line regarding the above referred order dated 8.5.2014 and take cognizance of the same. In the previous petition as well in this petition, it is averred by the petitioner that the very respondent No.1 i.e. Mr.D.J.Damor, has, in similar set of facts directed to release the truck in favour of the original owner and also furnished copies of such orders. Neither in the impugned order nor in the affidavit in reply, the said respondent No.1 has denied said facts and also not dealt with the said issue and it appears that the respondent No.1 is deliberately ignoring to touch the said issue, presumably because he has no answer for the same. This Court is quite aware of the contention raised by the respondents of a remedy under Section 61D of the Act to approach the Hon'ble Sessions Court and therefore, this Court should not exercise its jurisdiction under Article 226 of the Constitution of India. However, the above conduct of the respondents has prompted this Court to decide the issue in this petition with the sole intention to decide the issue related to truck in question as early as possible rather than giving liberty to the petitioner to approach Sessions Court under Section 61D of the Act, as it may further delay the issue related to handing over the truck.
[7] I am quite conscious of the fact that the purpose of insertion of Section 52 as well as other Sections i.e. 52A, 52B, 52C, and 52D by the said amendment is to have a check on the means of destruction of forest and forestproduce and to deter the law breakers including the owner of the vehicle from repeating the said crime again. I am also aware of the Page 10 of 14 C/SCA/8317/2014 JUDGMENT settled legal position that owner of the vehicle carrying forbidden goods cannot absorb all the liabilities even if he may not have been present at the spot.
[8] It is submitted by the learned AGP for the respondents that in an appropriate case where no offence is made out, the High Court in exercise of its powers under Article 226 of the Constitution of India may release the vehicle, but when primafacie case is made out against the person, no vehicle shall be released by the Court exercising its discretionary powers to see that the provisions of the Indian Forest Act are not frustrated. He then submitted that in the case on hand, when the primafacie case is made out against the person, this is not a fit case for release of the vehicle by the Court. Before dealing with the said submission made by the learned AGP for the respondents, it is desirable to consider certain orders passed by the respondent No.1Shri D.J.Damor, Deputy Forest Conservator in similar set of facts. In another case, he has directed to release the truck or the vehicle in favour of the concerned original owner. If AnnexureH is seen, it appears to be the copy of the order dated 25.10.2013 passed by respondent No.1Shri D.J.Damor, Deputy Forest Conservator in case No.02 of 201314. Likewise, the said officer has also passed another order in similar set of facts, copy of which is at AnnexureI related to Case No.14 of 201314 on 19.09.2013, after considering and exercising the discretionary powers vested in him to compound the offence under Section 68 of the Act. On a plain reading of the provision of Section 68 of the Act, it clearly appears that it is discretion of the concerned authority whether to compound offence under Section68 of the Act or not. I also find myself in agreement with the submission made by Mr.Pandya, learned AGP that it is not mandatory on the part of concerned official, always to compound the offence under Section 68 of the Act. In the case on hand, respondent Page 11 of 14 C/SCA/8317/2014 JUDGMENT No.1 has not thought it fit to exercise the discretionary powers within the purview of Section68 of the Act because the petitionerowner of the truck in question has not taken due care before giving the truck on rent. In the earlier referred cases also, the respondent No.1 has come to the conclusion that the owners of those vehicles have not taken due care at the relevant point of time and inspite of that he has exercised his discretionary power under Section 68 of the Act and therefore, in my view, when the facts of present case are identical and similar to the above referred cases, the respondent No.1 ought to have given similar treatment and ought to have released the truck in favour of the petitionerowner on payment of penalty more particularly when it is not under dispute that so far as the truck in question and owner of the said truck are concerned, this is the first offence registered against him. As observed by the Division Bench in Rishikesh R. Shahi(Supra), even though the power is discretionary, it has to be exercised in a judicious manner. Under the above discussed circumstances, it is clear that in similar set of facts in which the petitioner is falling as discussed hereinabove, similar treatment appears not to have been given by the respondent No.1Shri D.J.Damor, Deputy Forest Conservator, and no satisfactory explanation for the same has been forthcoming on the record and thus, it can be said that the action taken by the respondent No.1 is somewhat, arbitrary.
[9] It is not under dispute that the showcause notice dated 3.4.2014 at AnnexureD was issued and the impugned order dated 5.6.2014 at AnnexureA was passed against Sahil Husenbhai Alam. In the reply to the showcause notice dated 7.4.2014 and in the request made by the petitioner dated 2.5.2014, the same were replied/written by Shakil Husenbhai Alam and not Sahil Husenbhai Alam. I am conscious of the fact that there may be typographical error, but it appears that without Page 12 of 14 C/SCA/8317/2014 JUDGMENT application of mind, the facts have been narrated by the respondent No.1 because in the earlier petition being Special Civil Application No.7142 of 2014 and letter dated 12.05.2014, copies of which were served on the respondents, name of the petitioner is shown as Shakil Husenbhai Alam. In the R.C.Book also, the vehicle appears to have been registered in the name of Shakil Husenbhai Alam. It appears from paras 5 and 7 of impugned order itself that the statements of Bahchubhai Kaljibhai Rathwa and driverBhikhabhai Mohanbhai Rathwa were recorded on 2.3.2014 and 3.3.2014 respectively, in which name of Shakil Husenbhai Alam has been mentioned as the owner of the vehicle in question. No satisfactory explanation regarding the impugned order passed against Sahil Husenbhai Alam is forthcoming on the record. From the above, it can be said that no care appears to have been taken by the respondents, however, I am not giving any weightage on the above issue so far as merits of the case is concerned.
[10] Referring to two orders at AnnexureH and AnnexureI passed by Shri D.J.Damor, Deputy Forest Conservatorrespondent No.1 herein, it appears that while passing the said order, the circumstances as to whether vehicle in question was involved for the first time or for more than one occasion was taken into consideration. Moreover, while considering the aspect of releasing the vehicle in question seized by the respondents the issue as to whether the accused or owner of the said vehicle is a habitual offender or not will be an important aspect. The petitioner is clamming that the offence under consideration is the first one and therefore, sympathetic view should be taken by all concerned. It is not the case of the respondents that the said fact relating to offence being committed for the first time is not correct.
[11] Under the above discussed circumstances, the impugned order deserves to be set aside. As discussed hereinabove, since last Page 13 of 14 C/SCA/8317/2014 JUDGMENT approximately six months, the vehicle in question has remained in the custody of the respondents and after detention of the said vehicle, it was kept idle in the compound of JetpurPavi Range and that too naturally in an open to sky condition. The natural wear and tear of the vehicle is bound to be there so far as the vehicle in question is concerned. After releasing the vehicle in question also to make the said vehicle road worthy, substantial amount will have to be expended by the petitioner. Considering all the above aspects, I am of the view that ends of justice would be met if the order of minimum amount of penalty/compensation is passed against the petitioner. Hence, this petition is partly allowed and the impugned order dated 05.06.2014 passed by respondent No.1 is hereby set aside. On condition of the petitioner depositing an amount of Rs.5,000/(Rupees Five Thousand Only) with the respondent No.1, the vehicle in question bearing registration No.GJ17X7611 is hereby directed to be released forthwith. The petitioner is also directed to give an undertaking in form of an affidavit to the effect that the vehicle in question would not be involved in such offence in future. Necessary entries related to the offence in question shall be reflected in the R.C.Book of the vehicle in question i.e. bearing registration No. GJ17X 7611 of the petitioner by the concerned official of the Regional Transport Office. Rule is made absolute to the aforesaid extent.
[11.1] It is clarified that so far as muddamal related to 48 woods which were allegedly found in the truck in question when it was detained is concerned, the respondents are at liberty to dispose of the same through auction after following the due procedure for the same.
(G.B.SHAH, J.) siddharth// Page 14 of 14