Himachal Pradesh High Court
State Of Himachal Pradesh vs Tulsi Ram on 17 May, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr. MMO No. 12 of 2012.
Date of decision: 17.05.2017.
State of Himachal Pradesh .....Petitioner.
Versus
Tulsi Ram ..... Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1No For the Petitioner r : Ms.Meenakshi Sharma, Additional Advocate General with Mr.Neeraj K.Sharma, Deputy Advocate General.
For the Respondent : Mr.Lalit K.Sharma, Advocate.
Tarlok Singh Chauhan, Judge (Oral).
Bereft of any necessary details, the brief facts are that the Range Officer intimated the Authorized Officer-cum-Divisional Forest Officer, Nachan Forest Division (for short 'Authorized Officer') that the respondent is owner of the saw-mill, who had illegally converted the timber brought by one Budhi Ram for conversion under the Indian Forest Act (as amended by the State of Himachal Pradesh). Solely, on the basis of this complaint the Authorized Officer straightway passed an order under Section 52-A holding that the offence had been established against the respondent and accordingly ordered the saw-mill to be dismantled.
2. Aggrieved by the order passed by the Authorized Officer, the respondent filed an appeal before the learned Additional Sessions Judge, Mandi, who vide his judgment dated 01.04.2011 set aside the order passed by the Authorized Officer.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 19/05/2017 00:00:45 :::HCHP 2
3. It is against this order that the State has filed the instant petition under Section 482 of Cr.P.C. claiming that the aforesaid .
judgment is based on surmises and conjectures and, therefore, is not sustainable in the eyes of law.
I have heard Ms.Meenakshi Sharma, learned Additional Advocate General with Mr.Neeraj K.Sharma, Deputy Advocate General for the petitioner and Shri Lalit K.Sharma, Advocate, for the respondent and also gone through the records.
4. At the outset, it would be necessary to reproduce relevant provisions of the Indian Forest Act (as amended by the State of Himachal Pradesh) and the same read thus:-
"52-A. Confiscation by Forest Officers in certain cases.-(1) Notwithstanding anything contained in this Chapter, where a forest-offence is believed to have been committed in respect of timber (excluding fuelwood), resin, khair wood and katha, which is the property of the State Government, the Officer seizing the property under sub-section (1) of Section 52 without any unreasonable delay produce it, together with all tools, ropes, chains, boats or vehicles used in committing such offence before an Officer, authorized by the State Government in this behalf, by notification published in the Official Gazette, not below the rank of an Assistant Conservator of Forests (hereinafter referred to as the authorized officer). (2) Where an authorized officer seizes under sub-section(1) of Section 52 any timber (excluding fuelwood) resin, khair wood and katha, which is the property of the State Government, or where any such property is produced before an authorized officer under sub-section(1), once he is satisfied that a forest-
offence has been committed in respect of such property, such authorized officer may, whether or not a prosecution is instituted for the commission of such offence, order confiscation of the property so seized together with all tools, ropes, chains, boats or vehicles used in committing such offence."
::: Downloaded on - 19/05/2017 00:00:45 :::HCHP 3"52-B. Issue of show cause notice before confiscation under Section 52-A.-(1) No order confiscating any timber (excluding .
fuelwood), resin, khair wood and katha, ropes, chains, boats or vehicles shall be made under Section 52-A except after notice in writing to the person from whom it is seized and considering his objections, if any:
Provided that no order confiscating a motor vehicle shall be made except, after giving notice in writing to the registered owner thereof, if in the opinion of the Authorized Officer it is practicable to do so, and considering his objections, if any. (2) Without prejudice to the provisions of sub-section(1), no order confiscating any tool, rope, chain, boat or vehicle shall be made under Section 52-A if the owner of the tool, rope, chain, boat or vehicle proves to the satisfaction of the authorized officer that it was used in carrying the timber (excluding fuelwood), resin, khair wood and katha without the knowledge or connivance of the owner himself, his agent, if any and the person-in-charge of the tool, rope, chain, boat or vehicle and that each of them had taken all reasonable and necessary precaution against such use."
5. Indubitably, before resorting to any action under Section 52-A (supra), the Authorized Officer was required to issue a show-
cause notice as is evident from perusal of Section 52-B (supra), whereas, in the instant case not only was there any show-cause notice issued, but the Authorized Officer did not even care to record any evidence and solely on the basis of the report submitted by the Department proceeded to pass a drastic order of demolition of the saw-
mill.
6. It is more than settled that an action to be taken in a particular manner as provided by a statute, must be taken, done or performed in the manner prescribed or not at all. More than eighty years back, the Hon'ble Privy Council in Nazir Ahmad vs. King Emperor (AIR 1936, PC 253) held that where a power is given to do a ::: Downloaded on - 19/05/2017 00:00:45 :::HCHP 4 certain thing in a certain way, the things must be done in that way or not at all and this has been approved and further expanded by the .
Hon'ble Supreme court in catena of judgments (Refer: Rao Shiv Bahadur Singh and anr. vs. State of Vindh-P, AIR 1954, SC 322;
Deep Chand vs. State of Rajasthan, AIR 1961 SC 1527; State of Uttar Pradesh vs. Singhara Singh and Ors, AIR 1964, SC 358;
Chandra Kishore Jha vs. Mahavir Prasad, 1999 (8) SCC 266 ;
Dhananjaya Reddy vs. State of Karnataka, 2001 (4) SCC 9; State of Jharkhand & Ors vs. Ambay Cements and anr. (2005) 1 SCC 368 ;
Gujarat Urja Vikas Nigam Limited vs. Essar Power Limited, 2008 (4) SCC 755 ; Zuari Cement Ltd vs. Regional Director, ESIC, Hyderabad & Ors., AIR 2015, SC 2764 ; and Uddar Gagan Properties Ltd. vs. Sant Singh and Ors. 2016 (5) JT 389.).
7. The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusion alterius" meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following some other course is not permissible.
8. Having said so, no illegality, irregularity much less any perversity can be found in the judgment passed by the learned Addi tional Sessions Judge whereby it set aside the order passed by the Authorized Officer on the ground that the procedure for confiscation as envisaged and provided under the Act had not been followed.
Accordingly, there is no merit in this petition and the same is dismissed.
May 17, 2017. (Tarlok Singh Chauhan),
(krt) Judge.
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