Allowed

Rajesh Kumar v. The State Of Bihar and Ors.

Patna HC7 Aug 2019CWJC/8712/2016

Case brief

AI extract

What is this about?

Writ petition challenging confirmation of confiscation order for boulders and ballasts. Court set aside final order for violation of natural justice, lack of jurisdiction over railway premises, and failure to consider evidence of lawful ownership, directing release of materials or compensation.

What did the court decide?

Confiscation order set aside; release of remaining boulders/ballasts within three months or payment of cost of materials plus 7% interest.

Rajesh Kumar Vs The State Of Bihar and Ors. — Property and Title | Patna HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8712 of 2016

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Rajesh Kumar Son of Sri Ram Pratap Singh Resident of Mohalla - Bari Bazar, P.S. - Kotwali, District - Munger.

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... ... Petitioner/s

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Versus

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The State Of Bihar through Principal Secretary, Department of Forest and Environment Bihar Patna

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District Magistrate, Munger.

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Divisional Forest Officer, Munger Forest Area, Munger.

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Forest Range Officer, Forest Area Munger, District - Munger.

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... ... Respondent/s

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====================================================== Appearance : For the Petitioner/s : Mr.Dhirendra Nath Jha with Puroshottam Kr. Jha Advocates. For the Respondent/s : Mr. Uma Shankar, GP-4 ======================================================

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CORAM: HONOURABLE MR. JUSTICE SANJAY PRIYA CAV JUDGMENT

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Date : 07-08-2019

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The writ petition has been filed for issuance of writ in the nature of certiorari to quash the order dated 05.08.2013 (Annexure-14) passed by the Principal Secretary, Forest and Environment Department, Govt. of Bihar, Respondent no.1 passed in Confiscation Revision case no. 23 of 2005 by which the learned Principal Secretary allowed the revision application, after setting aside the order dated 29.11.2004, passed by the Collector -cum- District Magistrate, Munger (Respondent no.2) in Forest Confiscation Appeal no. 7 of 2003-04 and affirmed the order of the Divisional Forest Officer Munger, passed in Confiscation case no. 15 of 2002 and 16 of 2002 by order dated

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13.6.2002 which is contained in Annexure-9 to this petition. The petitioner has further prayed for issuance of writ in the nature of mandamus directing the respondent authority to release the left over boulders and ballasts to the petitioner part of which has been taken away by the petitioner under the order of the Hon’ble Court by order dated 9.11.2009 passed in C.W.J.C. No. 9343 of 2009. The petitioner has further prayed to direct respondent authorities to compensate the petitioner with cost of the materials or with the materials which is short from the quantity of the materials earlier confiscated by the Respondent Forest officer.

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Learned counsel for petitioner has submitted that there was a notice published inviting tender for supply of boulders and ballasts to be transported to Digha Railway site to be used for the construction of Digha Sonepur Railway Bridge. It was a condition precedent that the person being the real owner of the boulders and ballasts validly extracted shall only be entitled to file tender. The tender of the petitioner was accepted and petitioner was awarded the contract having being satisfied that petitioner was in position to supply the valid boulders and ballasts. It is further submitted that part of the boulders and ballasts was extracted from the mine when he was the valid lease holder of the mines and part of it was purchased from the

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persons who has extracted the boulders and ballasts. The petitioner after obtaining the transit permit from the Mining Department boulders and ballasts was transported to new Railway quarry site and stacked there for loading in the Railway wagon to be transported to Digha Railway site. The quarry site Jamalpur is within the premises of Indian Railway.

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It is further submitted that one Manohar Prasad Forest Range officer, Jamalpur, who was already put under suspension on 19.4.2006 seized the boulders and ballasts and issued letter dated 2.5.2002 indicating therein that he has seized the boulders on 16.4.2002 and on 19.4.2002. Thereafter Range officer submitted report to D.F.O Munger on 2.5.2002 on the basis of which a prosecution report was submitted on 29.9.2003 under Section 26(G), 41,42 and 51(1) of the Forest Act and Section 2(ii), 3A of Forest ( Conservation) Act, 1980 and 29, 52 of Wild Animal Conservation Act against the petitioner and other accused persons. The FIR has been enclosed as Annexure-1 to writ petition. The D.F.O. on the basis of the report initiated two confiscation proceedings, namely Confiscation case nos. 15 of 2002 and 16 of 2002. The D.F.O. without notice to the petitioner in violation of principle of natural justice and mandate of law as envisaged in Section 52(4) of the Act confiscated the

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boulders and ballasts by order dated 13.6.2002.

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The petitioner filed information slip in the court of C.J.M. to know whether D.F.O. has submitted any letter to the court of C.J.M. whereupon information was supplied on 22.7. 2002 to the effect that no such letter is received in the Court of C.J.M. Munger. Subsequently, petitioner having came to know about such confiscation preferred an appeal no. 7 of 2003-04 before the Collector against the order dated 13.6. 2002 passed in Confiscation nos. 15 of 2002 and 16 of 2002 passed by D.F.O. Munger.

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During pendency of the appeal the learned Collector made enquiry through Additional collector Munger who reported to the Forest officials that no documents were submitted by the forest officials and only ground of confiscation is that nobody turned up at the time of seizure. Thus, Additional Collector indicated that petitioner had shown the paper of the Mining Department and also shown the return filed in the Mining Department on the basis of which for realization of royalty to the tune of Rs. 284279/- certificate case has been instituted against the petitioner. The Collector came to the conclusion that petitioner has valid papers whereas the Forest Department did not have a chit of paper and boulders seized from the railway site is not

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within the reserved forest area, allowed the appeal and order of confiscation was set aside vide order dated 29.11.2004 passed in Appeal no. 7 of 2003-04. The aforesaid order dated 29.11.2004 was passed in Appeal no. 7 of 2003-04.

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The aforesaid order was communicated to the D.F.O. by memo no. 745 dated 17.6.2005 which has been received in the office of the DFO Munger on 7.7.2005. But in place of D.F.O. the Range Officer filed the revision against the order of the Collector on 9.9.2005. The revision was registered as Revision no. 23 of 2005.The petitioner raised the point about non maintainability of the revision, non explanation of the limitation and also on merit by filing reply to the revision petition. The revision application, ultimately, was heard on 28.7.2011 and the order of appellate Court was reversed. The learned Principal Secretary allowed the revision application by order dated 4.11.2011.

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It has further been submitted that under the similar facts and circumstances another revision case no. 4 of 2005 was dismissed by the Secretary on 8.11.2007 vide Annexure-10. The order allowing the revision against the petitioner is annexed as Annexure-9 to writ petition.

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The petitioner had challenged the earlier order dated

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4.11.2011 passed by the respondent no.1 as contained in Annexure-9 by filing CWJC No. 4085 of 2011. This Hon’ble Court set aside the order dated 4.11.2011 and remitted back the matter for reconsideration after examining the question of limitation within a reasonable time not exceeding two months from the date of receipt/production of a copy of this order. The matter was heard by Principal Secretary Environment Govt. of Bihar after remand. The respondent no.1 after hearing the parties has been pleased to set aside the order dated 29.11.2004 passed by the D.M. Munger and confirmed the order of the Divisional Forest Office, Munger dated 13.6.2002 passed in Confiscation no. 15 of 2002 and 16 of 2002 vide order dated 5.8.2013 (Annexure-14) passed in Confiscation Revision case no. 23 of 2005.

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Learned counsel for petitioner submitted that order passed by the respondent no.1 as contained in Annexure -14 are bad in law, illegal, arbitrary and without application of judicial mind and has been passed in violation of Article 14 of the Constitution of India. The Revisional Court has failed to consider the point of limitation, which was specifically raised in para 2 of the reply as revision was filed after lapse of 10 months when it should have been filed within 1 month. The principal secretary has no

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jurisdiction to condone the unexplained delay in absence of any separate limitation petition. The learned Principal Secretary has acted in discriminatory manner as in the same facts and circumstances in one case revision application has been dismissed and in the instant case revision application has been allowed. Learned Principal Secretary did not consider the points raised by the petitioner. The Principal Secretary failed to take into notice the fact that confiscation was done by the DFO without affording any opportunity of hearing in violation of the principles of natural justice as also the mandate of law as envisaged in section 52(4) of the Act. There was no iota of evidence produced by the Forest Department to demonstrate that it was a forest materials whereas petitioner produced the relevant documents of the ownership and transportation of the materials. The Forest officials have no jurisdiction to confiscate the boulders and ballasts from the premises of the Railway.

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A counter affidavit has been filed on behalf of respondent nos. 3 and 4 wherein it has been stated in para 8 that at the time of seizure and after the seizure no body came forward to claim the stacked boulders and ballasts. A notice was then published in Hindi Daily news paper on 8.6.2002 inviting claims over the seized materials. But nobody came forward to claim the

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seized materials. Thereafter the seized materials were confiscated by the Authorized officer cum DFO, Munger Division. The seizure was done on 10.4.2002, Notice inviting claim over the seized materials was published in newspaper on 8.6.2002. Finally, order of confiscation of materials was passed on 13.6.2002. The petitioner, therefore, cannot claim that he had no knowledge about the seizure of the materials. Photocopy of notice dated 8.6. 2002 has been annexed as Annexure -A to the counter affidavit. It is also mentioned in para 9 of the counter affidavit that information regarding initiation of confiscation proceeding under Section 52(2) of the Indian Forest (Bihar Amendment Act, 1927) was sent to the learned CJM, Munger vide letter no. 1202 dated 29.2.2002.

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A rejoinder to the counter affidavit has been filed on behalf of the petitioner wherein it has been stated that petitioner was holding valid mining lease since 30.12.1992 whereafter the competent authority i.e. the Mines Commissioner- cum- Secretary Mines Department Govt. of Bihar vide memo no. 2280 dated 1.7.2000 directed this petitioner not to do mining work. As such, the petitioner was having valid mining lease from 30.12.1992 to 1.7.2000. It is mentioned in para 7 of the rejoinder petition that since the issue of validly stored ballasts by the petitioner

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was not disputed by the respondents concerned in any time rather the authorities concerned (Forest Range Officer) Jamalpur has initially certified that in the year 2010 altogether 3,00,124 Cft ballasts was seized by the Forest Department which was lying at 20 stakes. The petitioner was allowed to lift 135525 Cft ballasts out of 300300 Cft. in terms of the order of this Court as contained in Annexure -6 passed in CWJC on 9343 of 2009. .All the details of lifting the ballasts by the petitioner have been countersigned and sealed by competent authority of the Forest Department which will become evident from the bare perusal of the evidence recorded in Register, copy whereof, was in possession of petitioner and the duplicate of the same was also available in the office of the Forest Department. True copy of the said register containing the details of ballasts lifted by petitioner has been annexed as Annxure-16 to rejoinder petition. The bonafide of the petitioner’s stock of ballast will become more clear from bare perusal of challan submitted by the petitioner in the office of District Mining officer. True copy of the different challan have been annexed as Annexure-17 series to the rejoinder petition. It has been submitted in para 9 of the rejoinder petition that even today petitioners’ 164,775 Cft ballasts are in possession of respondents concerned i.e. DFO-

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Forest Range Officer, Jamalpur who are not allowing this petitioner to lift the same. It has been submitted that on account of such wholly illegal and unauthorized action of the respondent concerned in making seizure of petitioner’s lawfully stored ballasts, the petitioner has sustained serious financial loss for the reason that due to non supply of the ballasts Indian Railway has forfeited the amount of security money i.e Rs. 65,000/- + loss of the profit. It has been submitted in para 15 of the rejoinder petition that statement made in paragraph no. 8 of the counter affidavit under rejoinder is wrong. The petitioner had submitted requisition in the office of the CJM Munger for getting the certified copy of seizure list in connection with alleged seizure of ballasts and in response whereto the office of CJM, Munger had informed seizure list is not enclosed. The true copy of information supplied by CJM Munger has been annexed as Annexure-20 to the rejoinder petition. The learned counsel for petitioner has submitted that there has been no difference between the case of the petitioner and the case of Prem Prakash Narain in Revision case no. 4 of 2005 (Annexure-10). The aforesaid revision was dismissed by the revisional authority. On the other hand, by the impugned order dated 05.08.2013 the Revisional Authority did not consider the material involved in the

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case in hand and reaffirmed the order passed by the then Revisional Authority being revision case no. 23 of 2005 Annexure-9 filed by petitioner which was earlier set aside by this Hon’ble court by order dated 28.9.2012 passed in CWJC No. 4085 of 2012 Annexure-11 to the writ petition. The Revisional Authority has passed the order impugned as contained in Annexure-14 in mechanical manner after ignoring the report submitted by the then Additional Collector dated 23.11.2004. The order contained in Annexure-14 is discriminatory and non speaking. The aforesaid order is fit to be set aside.The respondent concerned may be directed to allow this petitioner to lift the remaining 164775 Cft ballasts.

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This Court, after hearing the submission of the parties as well as the materials available in the writ petition, counter affidavit and rejoinder to the counter affidavit, as discussed above, finds that boulder and ballasts of the petitioner was confiscated by the Divisional Forest Officer on 13.6. 2002 (Annexure-2). The petitioner has challenged order by preferring Appeal vide Appeal no. 7 of 2003-04 before the Collector. The Collector vide order dated 29.11.2004 had set aside the confiscation order of the Divisional Forest Officer and allowed the appeal after relying on the report of the Additional Collector.

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The Collector has mentioned in the order that materials has been confiscated merely on presumption that they were forest produce and no valid document have been produced before the confiscating authority that the seized product were forest products. The Additional Collector has mentioned in the report that petitioner had shown paper of the Mining Department and also shown the return filed in the Mining Department on the basis of which for realization of royalty a certificate case has also been filed against the petitioner for realization of royalty to the tune of Rs. 284279/-. The Collector has set aside the order of Confiscating Officer dated 13.6. 2002. The Range officer of Dharhara Range of Munger Forest Divisions Munger filed revision application vide Confiscation revision no. 23 of 2005. The learned Principal Secretary ( respondent no.1) has allowed the revision application vide order dated 4.11.2011 as contained in Annexure9. The petitioner has filed writ application being CWJC No. 4085 of 2011 before this Court challenging the aforesaid revision order passed by the Revisonal Authority. This Hon’ble Court set aside the order dated 4.11.2011 and remitted back the matter for reconsideration after examining the question of limitation within a reasonable time not exceeding two months from the date of receipt/production of a copy of this order. The Revisonal

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Authority after remitting the matter vide order dated 5.8. 2013 after hearing both the parties on the question of limitation as directed by this court and examining the question of limitation has upheld the order dated 13.6. 2002 passed by the Confiscating Officer.

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This court finds that Principal Secretary respondent no.1 in both the orders as contained in Annexure(s)-9 and 14 has not considered the report of the Additional Collector as well as the submissions made on behalf of the petitioner as well as the document filed on his behalf. The Collector has passed order dated 29.11.2004 without considering the merits of case. It has set aside the order of appellate Court only on the ground that nobody turned up before the confiscating authority at the initial stage as mentioned in the order of the confiscation officer dated 13.6.2002 (Annexure-2). The Principal Secretary has failed to consider the report of the Additional collector and also the document produced by the petitioner before him which was relied upon by the Collector while passing the order during appeal by which order of the confiscating authority was set aside. This Court finds that Revisional authority has passed the order merely on presumption, whereas there was material on record including the report of the Additional Collector, that petitioner

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was genuine owner of the boulders and ballasts extracted legally from the mines under the lease after paying the royalty in the mining department and transported by valid transit challan issued by mining Department. The confiscating authority also failed to consider the fact that confiscation was done by the D.F.O. without affording an opportunity of hearing to petitioner in violation of the principles of natural justice and also the mandate of law as envisaged in section 52(4) of the Act.

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From perusal of impugned order, it appears that forest department has failed to demonstrate that seized boulders and ballasts were the forest produce whereas the petitioner produced the relevant valid documents of the ownership and transportation of the materials. The forest official had no jurisdiction to confiscate the boulders and ballast from the premises of the Railway which were staked in the New Quarry Railway Site. The same were stacked through transport by loading the same in the Railway Wagon.

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Therefore, the order as contained in Annexure-14 passed by the Revisonal Authority (respondent no.1) is not in accordance with law and the same is hereby set aside. The confiscating officer is directed to release the boulder and ballast of the petitioner which have been seized by the confiscating authority

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vide order dated 13.6. 2002.

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It has been submitted on behalf of the petitioner in para 21 to 23 of the writ application that petitioner earlier moved the Hon’ble court in CWJC no. 9343 of 2009 for release of the boulders and ballasts whereupon the Hon’ble court directed the DFO Munger to release the boulders and ballasts which was subject matter of confiscation case nos. 15 of 2002 and 16 of 2002 vide order dated 9.11.2009. Thereafter the DFO by letter no. 349 dated 16.10.2011 directed the petitioner to take out the boulders. Again vide letter dated 16.11.2011 the petitioner was not allowed to take out the boulders and ballasts.

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The confiscating authority will deduct the quantity of Boulder and ballast which were earlier taken out by the petitioner in pursuance of the letter no. 349 dated 16.10.2011 issued by the DFO, and release the remaining boulders and ballasts within a period of three months from date of receipt of this order.

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In the event, the boulder and ballast confiscated by the respondents were not available, the respondents shall compensate the petitioner by making payment of cost of materials to be quantified on the basis of the price of materials prevailing at the time they were confiscated by the confiscating

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authority i.e. 13.6.2002, along with interest at the rate of 7% per annum till the date of final payment is made to the petitioner. The respondent no.1 will comply the order of this court within a period of 03 (three) months from the date of receipt of copy of this order.

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The writ application is, accordingly, allowed with directions made above.

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(Sanjay Priya, J)

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shyambihari/- AFR/NAFR AFR CAV DATE 30.07.2019 Uploading Date 19.8.2019 Transmission Date

Rajesh Kumar v. The State Of Bihar and Ors.

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Rajesh Kumar v. The State Of Bihar and Ors.

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