Orissa High Court
(An Application Under Articles 226 And ... vs Authorized Officer-Cum-Assistant ... on 16 April, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: Junior Stenographer
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 18-Apr-2024 18:08:50
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). NO.7927 OF 2013
(An application under Articles 226 and 227 of the
Constitution of India)
*****
Nabaghana Parida .... Petitioner
-versus-
Authorized Officer-cum-Assistant .... Opp. Parties
Conservator of Forests, Cuttack
Division and another
Advocate for the Parties :
For Petitioner : Mr. Rabinarayan Nayak, Advocate
For Opposite Parties : Mr. Swayambhu Mishra,
Additional Standing Counsel
CORAM:
JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 16.04.2024
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JUDGMENT
1. This matter is taken up through hybrid mode.
2. Judgment dated 2nd February, 2013 (Annexure-10) passed in FAO No.132 of 2011 is under challenge in this writ petition, whereby learned District Judge, Cuttack dismissing the appeal under Section 56 (2-e) of the Odisha Forest Act, 1972 (for brevity 'the Act') confirmed the order of confiscation dated 23rd November, 2011 passed by the Authorized Officer-cum-Assistant Conservator of Forests, Cuttack Division, Cuttack in OR Case No.47-D of 2011-12 confiscating the Tractor and Trolley bearing Registration No. OR- 05-AM-9780/9781 (for brevity 'the offending vehicle') along with Murram loaded in the said vehicle.
W.P.(C). NO.7927 OF 2013 Page 1 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAKDesignation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Apr-2024 18:08:50
3. The prosecution story in brevity as revealed from the record is that the offending vehicle was seized from the proposed reserve forest while it was lifting Murram. The Forster, Chandikhole Section seized the offending vehicle and booked UD Case keeping the seized articles in his custody. Subsequently, OR Case No.47-D of 2011-12 was initiated and the offending vehicle along with the seized articles Murram was directed to be confiscated under Section 56 of the Act vide order dated 23rd November, 2011 (Annexure-7) passed by the Authorized Officer-cum-Assistant Conservator of Forests, Cuttack Division. Assailing the same, the Petitioner preferred FAO No.132 of 2011, which was also dismissed vide order under Annexure-10. Hence, this writ petition has been filed assailing the orders under Annexures-7 and 10.
4. Mr. Nayak, learned counsel for the Petitioner submits that from the seizure list, it appears that only 5 Cft. of Murram was seized from the offending vehicle. If it is spread over the trolley, it is very difficult to ascertain its quantity. He further submits that Murram, being a minor forest produce, no TT permit under the provisions of Orissa Timber and other Forest Produce Transit Rules 1980 (for brevity ' OTT Rules') is required if it is transported within the district in view of the provision under Rule 5 of the said Rules. He further submits that there is no material on record to come to a conclusion that the Murram was seized from a forest area. No document could be filed by the forest officials that the spot from which the offending vehicle was seized was declared as a forest. It is further submitted that a concocted story has been made out to seize and confiscate the offending vehicle, which belongs to the Petitioner.
W.P.(C). NO.7927 OF 2013 Page 2 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAKDesignation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Apr-2024 18:08:50 He, therefore, prays for setting aside the impugned orders under Annexure-7 and 10.
5. Mr. Mishra, learned Additional Standing Counsel vehemently objects to the submission made by learned counsel for the Petitioner and contends that the driver of the offending vehicle categorically admitted in his statement recorded by the Authorized Officer that he had left the Tractor inside the forest area. Admittedly, the offending vehicle was seized while being loaded with Murram. The forest guards and Madhav Chandra Nayak, the Forester of the Asia Charinangala proposed reserve forest was recorded. They have stated in their statement that they detected the labourers were loading Murram in the offending vehicle. Seeing the forest officials, all of them fled away. On assessment of evidence and materials on record, the Authorized Officer and learned District Judge, Cuttack came to hold that the offending vehicle was seized from forest area. Since the finding has been arrived on assessment of evidence, this Court while exercising power under Article 227 of Constitution of India, should be slow in interfering with the same. He drew attention to the provision under Section 2-g of the Act which defines 'forest produce'. Clause-(d) of Section 2-g of the Act provides that, surface oil, rock, sand and minerals including limestone, laterite; mineral oils and all products of mines or quarries are forest produce. Murram being a mineral is a forest produce and was being loaded on the offending vehicle without any TT permit, when seized. Hence, a forest offence has been committed. There is no illegality in the impugned orders under Annexures-7 and 10. The offending vehicle was loaded with Murram and was seized while the same was standing in the proposed forest violating Rule 4 of the W.P.(C). NO.7927 OF 2013 Page 3 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Apr-2024 18:08:50 OTT Rules. As such, the writ petition, being devoid of any merit, should be dismissed.
6. Taking note of the rival contentions of learned counsel for the parties, this Court feels it proper to discuss the relevant provisions of the Act and OTT Rules for discussion.
6.1 Rule 2 (h) of the OTT Rules defines 'Minor Forest Produce' which reads thus:
"Minor Forest Produce" means forest produce other than timber, fire-wood, charcoal and bamboos."
6.2 Rule 5 of the OTT Rules provides circumstances where no TT Permit is required for transportation. Rule 5 (1) (i) is relevant for our discussion, which reads as under:
(1) No transit permit shall be required to cover transit of forest produce in the following cases, namely:
xxx xxx xxx i- for transport of minor forest produce within the district except lac, tassar, myrabolans, gums and resin, root or patalagaruda, sal seed, tamarind and hill brooms, subject to such limit of transport and storage without transit permit as may be notified by State Government in the Official Gazette for different items."
7. Thus, it is contended by Mr. Nayak, learned counsel for the Petitioner that Murram being covered under the definition of minor forest produce does not require TT Permit while being transported within the district.
8. Mr. Mishra, learned Additional Standing Counsel drew attention to Section 2 (g) (ii) (d) which defines 'forest produce'. It provides that forest produce includes:
xxx xxx xxx xxx W.P.(C). NO.7927 OF 2013 Page 4 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Apr-2024 18:08:50 "ii- The following when found in or brought from a forest that is to say;
xxx xxx xxx xxx d- Peat, surface oil, rock, sand and minerals (including limestone, laterite; mineral oils and all products of mines or quarries)."
9. Admittedly, Murram is a mineral. Thus, as per the definition under Section 2(g)(ii)(d) of the Act, it is a forest produce. It was seized from forest area, as admitted by the driver of the offending vehicle in his statement before the Authorized Officer as well as the forest officials/staffs who seized the offending vehicle. An attempt is made by Mr. Nayak, learned counsel for the Petitioner to bring the seized article in minor forest produces. Although, it is defined under Rule 2 (h) of the OTT Rules that forest produces other than timber, firewood, Charcoal are minor forest produce, but the provisions under Rule 5 of the OTT Rules are not absolute. The provisions made therein are to be read in harmony with other provisions of the said Rules as well as the Act to achieve the object of the Act and Rules framed thereunder. A conjunctive reading of the provisions of the Act and Rules framed thereunder is always necessary so that any of the provision either under the Act or Rules framed thereunder does not become otiose or ineffective. Rule 5(1)(e) of the OTT Rules provides that no TT permit is necessary for removal of forest produce other than timber, bamboos and mineral of any description required by transits, having recognised rights under any law in force for their bona fide domestic use but not trade or barter subject to the condition that Tribals can transport or possess up to 50 Kgs. of tamarind and ten bundles of bamboos without transit permit. Murram being a mineral is not covered under the exception W.P.(C). NO.7927 OF 2013 Page 5 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Apr-2024 18:08:50 as provided in the aforesaid provision. No material is also available on record to show that it was being transported for domestic use that too within the district. Thus, Rule 5(1)(i) has no application to the instant case. To the contrary, the definition under Section (2) (g) (ii)
(d) of the Act is apt in the instant case to take within its ambit the seized article Murram as a forest produce. As such, a TT Permit was required for transport of Murram in the offending vehicle.
10. Although, Mr. Nayak, learned counsel for the Petitioner submits that no material was produced to arrive at a conclusion that the area from which the offending vehicle was seized was a forest area, but taking into consideration the material available on record the Authorized Officer as well as learned District Judge, Cuttack came to a categorical finding that the spot from which the offending vehicle was seized comes under the forest area. No case is made out to arrive at a conclusion that the findings recorded by the Authorised Officer as well as learned District Judge is perverse. Only because a different view may be possible by re-appreciating the evidence, this Court by exercising the power under Article 227 of the Constitution of India, should not substitute the same with its own finding.
11. A bleak argument is made that it is highly improbable to seize only Murram, more particularly when allegation is made that Murram was being loaded in the offending vehicle. Only because the tools used for loading the Murram were not seized, it cannot be said that no forest offence has been committed.
12. On a cumulative assessment of the materials available on record, this Court finds no infirmity in the orders under Annexures-7 and 10. Accordingly, the writ petition, being devoid of any merit, W.P.(C). NO.7927 OF 2013 Page 6 of 7 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Apr-2024 18:08:50 stands dismissed. In the facts and circumstances of the case, there shall be no order as to cost.
Urgent certified copy of this order be granted on proper application.
(K.R. Mohapatra) Judge High Court of Orissa, Cuttack The 16th Day of April, 2024/Rojalin W.P.(C). NO.7927 OF 2013 Page 7 of 7