W.P.(C) No.5740 of 2001 P R E S E N T HON BLE MR. JUSTICE NARENDRA NATH TIWARI

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1 BY COURT: 1 W.P.(C) No.5740 of 2001 (In the matter of an application under Articles 226 and 226 of the Constitution of India) Parmanand Pandey & Anr.. Petitioners. Versus The State of Jharkhand & Ors..... Respondents. For the Petitioners : M/s. Deepak Kumar and Alok Lal, Advocates For the State : Mr. Ajit Kumar, AAG P R E S E N T HON BLE MR. JUSTICE NARENDRA NATH TIWARI The petitioners have assailed the order dated 26 th February, 1996 (Annexure 5) passed by the Divisional Forest Officer, Social Forestry Division, Sahibganj, whereby the petitioners' truck, bearing Registration No.BRK 8565, crusher machine, electric motor and diesel engine have been confiscated for committing forest offence and mining stone in violation of Forest (Conservation) Act, The petitioners have further prayed for quashing the order dated 20 th February, 1998 (Annexure 6) passed by the Deputy Commissioner, Sahibganj in R.M.A. No.10 of , whereby the petitioners' appeal has been dismissed and also for quashing the order dated 21 st May, 2001 (Annexure 2) passed by the Secretary, Ministry of Forest and Environment, Government of Jharkhand cum Revisional Authority, whereby the petitioners' revision has been dismissed. 2. The facts of the case, in brief, is that on 3 rd December, 1995 at 3.40 p.m., the Authorized Officer of Taljhari Range along with other forest staff and armed forces led by Sub Inspector of Police arrived at Plot No.163 of Mouja Kalyani and seized crusher machine, truck bearing Registration No.BRK 8565, electric motor, diesel engine, stone challies etc., besides other articles of some other persons for committing forest offence and mining stone within the forest area, declared as 'reserved forest'. A, report was prepared and forwarded and on the basis of the said report, Confiscation Proceeding No.4 of was initiated. In course

2 2 of investigation, it was found that the truck bearing Registration No.BRK 8565 belonged to Petitioner No.1. He was made Accused No.2. Notices were served on both the petitioners. After considering their reply, the Divisional Forest Officer cum Authorized Officer passed order on 26 th February, 1996 for confiscation of the seized articles. 3. Against the said order, the petitioners filed appeal before the Deputy Commissioner cum Appellate Authority. The said appeal was registered as R.M.A. No.10 of Learned Deputy Commissioner dismissed the appeal vide order dated 20 th February, The petitioners, thereafter, preferred writ petition, being CWJC No.441 of 1997, challenging the said order. The writ petition was disposed of, directing the District Forest Officer and the District Mining Officer to make a full fledged enquiry and submit a report to the Collector. 5. In accordance with the said order, a joint enquiry was conducted by the District Forest Officer and District Mining Officer and the report was submitted to the Collector cum Appellate Authority on 19 th June, Learned Appellate Authority considered the said enquiry report and dismissed the petitioners' appeal by order dated 20 th February, 1998 (Annexure 6). 7. The petitioners, thereafter, preferred revision before the Secretary, Ministry of Forest and Environment, Government of Jharkhand cum Revisional Authority, who vide order dated 21 st May, 2001 dismissed the petitioners' revision. 8. The petitioners, feeling aggrieved, filed the instant writ petition, challenging those orders and also praying for release of their confiscated articles. 9. According to the petitioners, the impugned orders are wholly arbitrary, illegal and without jurisdiction and the same are liable to be quashed. 10. Learned counsel for the petitioners submitted that the petitioners have not carried out any non forest activity over Plot

3 3 No.163. The petitioners have their raiyati land, being Plot No.212 of Mouja Kalyani. They were granted mining lease over Plot No.163 of Kalyani in the year 1970 with the clause of renewal up to 20 th June, At the relevant time the petitioners' lease was subsisting. The petitioners were holding valid lease and were carrying out mining operation since much before coming into force of Forest (Conservation) Act, Any restriction imposed by virtue of the provisions of the said Act was not applicable on the petitioners. No forest offence either under the Indian Forest Act or under the Forest (Conservation) Act, 1980 has been committed by them. The petitioners' articles were seized under the provision of Section 52 of the Indian Forest Act and were confiscated by the impugned orders. Since the petitioners have not committed any forest offence, the entire seizure is wholly illegal and arbitrary. 11. Learned counsel for the petitioners submitted that there is no material or evidence on record to establish that the petitioners have committed any forest offence. Plot no.163 of Mouja Kalyani was under lawful possession of the petitioners by virtue of the lease granted by the Government up to The lease was granted long back in the year 1970, whereas the Forest (Conservation) Act, 1980 came into force much thereafter by which restriction of mining etc. in the forest land was imposed under the provisions of Section 2 of the said Act. Learned counsel submitted that mining lease, covering forest area, granted prior to commencement of the Forest (Conservation) Act, does not attract the provision of Forest (Conservation) Act, Learned counsel referred to and relied upon the decision of the Hon'ble Supreme Court in State of Bihar Vs. Banshi Ram Modi & Ors. [AIR 1985 SC 814]. He submitted that while interpreting Section 2 of the Forest (Conservation) Act, 1980, it has been held that expression non forest purpose as used in Section 2 means breaking up or clearing of any forest land or protection thereof for any purpose other than reafforestation or

4 4 regeneration of forests. The lessee carrying on mining operations cannot be allowed to break up or clear any forest land or portion thereof in pursuance of mining lease granted in the lessee's favour. Hon'ble Supreme Court further held that the forest area, which was already utilized for non forest purpose by carrying out mining operation before commencement of the Act does not attract Section 2 and prior approval of the Central Government is not necessary for the purpose of carrying out mining operation. 13. Learned counsel further submitted that the respondents have failed to bring any cogent material or evidence on record to establish that the petitioners have committed any forest offence. Entire proceeding was incompetent and wholly without jurisdiction. The Divisional Forest Officer as well as the Appellate Authority and the Revisional Authority without taking into consideration the facts and materials on record and provision of law have arbitrarily held the petitioners guilty of violating the provisions of Forest (Conservation) Act, 1980 and has arbitrarily confiscated/upheld the order of confiscation of the petitioners' said properties. The orders are without any legal basis and are unsustainable. 14. The writ petition has been contested by the respondents, stating, inter alia, that Plot Nos.153, 154 and 163 of Mouja Kalyani, Circle Taljhari, District Sahibganj were declared as protected forest by Notification No dated 2 nd November, 1894 issued by the Government of Bengal under the Indian Forest Act, The forest was again notified as reserved forest by notification dated 25 th February, 1946 issued under Section 4 of the Indian Forest Act, The Government of Bihar subsequently notified acres of land as forest including the said land under Section 20 of the Indian Forest Act, 1927 and a notification to that effect was issued on 28 th May, In CWJC No.7076 of 1994 (Mahabir Prasad Chirania Vs. State of Bihar), Patna High Court vide its order dated 7 th September, 1995 upheld the said notification.

5 5 15. In view of the said decision, the Divisional Forest Officer, Sahibganj had issued notice dated 26 th September, 1995 to the petitioners, asking them to stop non forest activity on the forest land and to remove all materials, including vehicles, building etc. from the forest land immediately. The petitioners in spite of service of notice did not stop the mining work on the forest land. The respondents conducted a raid and seized the vehicles, crusher machine, electric motor, diesel engine etc. The confiscation proceeding was, thereafter, initiated under Section 52 (Bihar Amendment) of the Indian Forest Act. The Forest Officer cum Divisional Forest Officer passed order dated 26 th February, 1996 for confiscation of the said articles. The petitioners assailed the said order before the Appellate Authority cum Deputy Commissioner, Sahibganj. The Appellate Authority upheld the order of the Divisional Forest Officer. The petitioners, thereafter, preferred writ petition, being CWJC No.441 of The said writ petition was disposed of by order dated 8 th April, 1997, directing the District Forest Officer and District Mining Officer to hold joint enquiry and submit a report to the Deputy Commissioner. Accordingly, report was submitted. On the basis of the report, the Deputy Commissioner upheld the order of confiscation. The petitioners, thereafter, preferred revision, which was also dismissed after taking into consideration the facts and materials on record and submissions of the parties. The orders of the Appellate Authority and Revisional Authority are well considered and the same did not warrant any interference in writ jurisdiction of this Court. 16. Mr. Ajit Kumar, learned Additional Advocate General, appearing on behalf of the respondents, submitted that though it is not disputed that the petitioners were holding the lease over Plot No.163 since much prior to the date of commencement of the Forest (Conservation) Act, 1980, but that does not absolve the petitioners from restrictions imposed in Section 2 of the said Act. Restriction is for grant of fresh lease as also renewal of lease. The petitioners' lease appears to be renewed without prior

6 6 permission of the Central Government and the same was violative of the provisions of Section 2 of the said Act. Any nonforest activity without prior permission of the Central Government is, thus, forest offence and the petitioners are liable for the consequence as provided under Section 52 (Bihar Amendment) of the Indian Forest Act. Learned counsel submitted that object of the Forest (Conservation) Act is conservation of forest and protection of environment. The said object also applies to the subsisting lease of the forest land. After commencement of the Forest (Conservation) Act in 1980 carrying out mining operation on Plot No.163 by the petitioners comes within the expression of non forest use which was not permissible without prior approval of the Central Government. 17. I have heard learned counsel for the parties and considered the facts and materials on record. In the instant case, some relevant facts are not disputed. It is not in dispute that the petitioners were granted mining lease on Plot No.163 of village Kalyani in the year 1970 and they have been mining stone in the said plot since much before coming into force of the Forest (Conservation) Act, It is also not in dispute that the orders of the Authorized Officer as well as the Appellate Authority were quashed by this Court, directing a joint enquiry by the Divisional Forest Officer and the District Mining Officer in CWJC No.441 of It is also not in dispute that in the enquiry report no definite finding was recorded regarding place from where the articles were seized. 18. The petitioners have categorically denied the allegations of committing any forest offence, whereas the petitioners' articles have been seized and thereafter confiscated under Section 52 (Bihar Amendment) of Indian Forest Act on the ground of committing forest offence. The offence, as alleged, is that the petitioners were involved in mining activity/non forest activity within the area of reserved forest. 19. Since the allegation has been denied by the petitioners, the prosecution/respondents had to establish that the petitioners

7 7 had committed forest offence. 20. Chapter II of the Indian Forest Act prescribes provision relating to constitution of reserved forest and other related matters. Section 4 of the said Act provides for notification by the State Government regarding its decision to constitute any land as reserved forest by publishing the same in the official gazette. The said notification has to be followed by the proclamation by Forest Settlement Officer (Section 6) and enquiry by Forest Settlement Officer (Section 7); Section 8 deals with the powers of Forest Settlement Officers, Section 9 with extinction of rights and Section 10 treatment of claims relating to practice of shifting cultivation; Section 11 gives power to acquire land over which right is claimed and Section 12 for order on claims to rights of pasture or to forest produce. Appeal from order passed under Sections 11, 12, 15 & 16 is provided under Section 17 of the Act. 21. After the said long procedure, a notification has to be issued under Section 20 of the said Act, declaring a forest reserved. It, inter alia, provides that the State Government shall publish a notification in the official gazette, specifying definitely, according to boundary marks erected or otherwise, the limits of the forest which is to be reserved, and declaring the same to be reserved from a date fixed by the notification. Sub section (2) of Section 20 specifies that from the date so fixed such forest shall be deemed to be a reserved forest. 22. Section 21 of the said Act provides for publication of translation of such notification in neighbourhood of forest. It says that the Forest Officer shall, before the date fixed by such notification, cause a translation thereof into the local vernacular to be published in every town and village in the neighbourhood of the forest. 23. In the instant case, no notification under Section 20 of the said Act has been brought on record, firstly to show that the land from where the articles were seized is part and parcel of reserved forest in order to establish that forest offence was committed and the petitioners were found engaged in non

8 8 forest activity in the reserved forest area. 24. The respondents have to establish that there was a notification declaring the land in question as reserved forest and that the notification was published under Section 20 and the requirement of Section 21 was complied with. 25. The Hon'ble Supreme Court in Banshi Ram Modi's case (Supra) has clearly held that prior approval of Central Government under the provisions of Section 2 of the Forest (Conservation) Act, 1980 is not required for carrying out mining operations in a forest area which is broken up or cleared before the commencement of the Act. 26. There is nothing on record to show that on the alleged date of violation of provision of Forest (Conservation) Act, the plot, in question, was not broken for non forest purpose. Further, it is evident from the enquiry report (Annexure 4) submitted after joint enquiry by the Divisional Forest Officer and the District Mining Officer that it was not clear that the articles were seized from the land, in question. 27. Learned Deputy Commissioner, Sahibganj cum Appellate Authority, while passing his order, has relied on the said enquiry report, which does not speak anything about commission of forest offence on the land, in question. The impugned order of the said authority is not supported by any legal evidence and is wholly perverse. Learned Revisional Authority has also upheld the order of the learned Appellate authority without taking into consideration the said aspect. The revisional order is, thus, also wholly illegal and unsustainable. 28. Article 300A of the Constitution of India clearly provides that no person shall be deprived of his property saved by authority of law. 29. From the above discussion, I find that the seizure of the petitioners' articles and subsequently confiscation thereof is without any authority of law. The impugned orders are wholly without any legal basis and without jurisdiction.

9 9 30. For the reasons aforesaid, this writ petition is allowed. The impugned orders dated 26 th February, 1996 (Annexure 5), 20 th February, 1998 (Annexure 6) and 21 st May, 2001 (Annexure 2) are quashed. 31. As a consequence, the respondents are directed to release the seized/confiscated articles to the petitioners forthwith. 32. It has been informed that the petitioners' truck has been auctioned and the sale proceed has been deposited in the Treasury. Since the truck has already been sold, the respondents shall release the sale proceed of the said truck to the petitioners forthwith. Jharkhand High Court Ranchi Dated 13 th September, 2012 Sanjay/NAFR (Narendra Nath Tiwari, J.)

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