The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 774 of 2016 Manmohan Kumar son of Binod Kumar Dubey, Resident of Tila Tand, P.O., P.S. Katras, District- Dhanbad … … Petitioner Versus 1. State of Jharkhand 2. Principal Secretary, Department of Forest, Environment & Climate Change, Govt. of Jharkhand, Nepal House, P.O. & P.S. Doranda, District- Ranchi. 3. Divisional Forest Officer, Waste Division, Hazaribagh, P.O., P.S. & District- Hazaribagh. 4. Deputy Commissioner, Hazaribagh, P.O. & P.S. Hazaribagh, District- Hazaribagh. 5. Forest Range officer, Padma, P.O. & P.S. Padma, District- … Respondents Hazaribagh. … CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- For the Petitioner For the State
Legal Reasoning
--- : Mr. Rajendra Krishna, Advocate : Mr. Jay Shankar Tiwary, Advocate : Ms. Priti Priyamvada, AC to GP-V --- 09/02.02.2024 Heard the learned counsels for the parties. 2. This writ petition has been filed for the following reliefs: “(i) For issuance of an appropriate writ(s)/order (s)/direction(s) or a writ in nature of certiorari for quashing of the order dated 11.1.2016 (Annexure-12) passed by respondent no.2 in Revision Case No. 28/2014 whereby and whereunder the respondent no.2 has set aside the order passed by the Deputy Commissioner, Hazaribagh and remanded the matter before the Deputy Commissioner, Hazaribagh to hear the matter afresh in a mechanical and arbitrary manner. AND in pursuance of (ii) For issuance of an appropriate writ(s)/order (s)/direction(s) or a writ in nature of mandamus commanding upon the respondents to release the Haiwa Dumper Truck bearing Registration No. JH10AE 5221 along with 400 CFT of stone bolder the Deputy Commissioner, Hazaribagh in Confiscation Appeal No. 8/2013 vide order dated 8.7.2014 whereby the Deputy Commissioner has given direction to the Divisional Forest Officer, West Forest Division i.e. respondent no. 3 that the Confiscation of the Haiwa Dumper Truck bearing Registration No. JH10AE 5221 along with 400 CFT of stone bolder shall release in favour of the petitioner. the order passed by AND (iii) For issuance of an appropriate writ(s)/order (s)/direction(s) or a writ in nature of mandamus commanding upon the respondents to immediate and forthwith release the Haiwa Dumper Truck bearing Registration No. JH10AE 5221 along with 400 CFT of stone bolder which has been seized by the respondent authorities on 13.10.2012 and same is still under their custody causing irreparable loss and mental agony to the petitioner.” 3. The learned counsel for the petitioner has submitted that the revisional authority, vide impugned order dated 11.01.2016 has remanded the matter before the Deputy Commissioner for passing 2 fresh order although the prosecution report was in favour of the petitioner. He submits that the petitioner has been unnecessarily harassed. He also submits that all the relevant materials are placed on record for consideration by this Court. The learned counsel has also submitted that the confiscation authority, while considering the prosecution report, had committed error of record which led to passing of the order of confiscation and the appellate authority had set-aside the order of confiscation but the revisional authority has arbitrarily and mechanically remanded the matter to the appellate authority for fresh consideration. 4. Learned counsel appearing on behalf of the respondents, while opposing the prayer, has submitted that this Court may not set-aside the order of remand and it is for the authority to take into consideration and examine the materials on record and then pass a fresh order. She submits that the entire proceeding pursuant to the order of remand can be concluded within a period of one month if the petitioner cooperates with the proceedings. It is submitted that a date of hearing be fixed by this Court itself for appearance of the parties before the appellate authority. 5. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that an order of confiscation was passed against the petitioner by the confiscating authority in Confiscation Case No. 73 of 2012 on 05.06.2013 as contained in Memo No. 1889 dated 05.06.2013 against which the petitioner had filed appeal before the Deputy Commissioner and the appeal was allowed vide order dated 08.07.2014 wherein following directions were issued: “Therefore considering the above facts and circumstances of case I find that there is merit in the appeal filed by the petitioner. Therefore under section 52A of the Indian Forest Act 1927 I allow the appeal and set aside the order passed by the Authorised officer cum Divisional Forest Officer West forest Division and hereby order to Authorised officer cum Divisional Forest Officer West forest Division to release the Haiwa bearing No. JH10 AE 5221 along with 400 cft of stone bolder in favour of petitioner. Let a copy of this order be given to all concerned for information and necessary action.” 6. The appellate order was challenged before the revisional authority by the Forest Department being Revision Case No. 28 of 2014. The revisional authority remanded the matter for passing fresh 3 order after hearing both the parties by the appellate authority vide order dated 11.01.2016 after recording the contradictions in the order passed by the appellate authority and the order passed by the confiscating authority as follows:- “On careful perusal of the order passed by the learned lower court and other relevant documents, I come to the conclusion that the impugned order suffers from the following serious flaws. (a) The DC in his order has stated that the enquiry report of Range Forest Officer, Padma clearly mentions that no spot of illegal mining was found in Donai Khurd Forest area. The report is further stated to mention that the stone boulders on Haiwa were not taken from any forest area. This aspect of the enquiry report, a copy of which is not available in this court, is clearly in contradiction of the following paragraphs mentioned in the order passed by the learned DFO, Hazaribagh. No attempt has been made in the impugned order to resolve this contradiction. “In the meantime the Range Forest officer, Barhi submitted the detailed prosecution report in the matter. Perusal of the prosecution report revealed that the Beat Officer, Padma had conducted a detailed enquiry in the matter. He verified the spot with the village map and found that the place of occurrence lies in plot no. 1781 of Donai Khurd forest which is a notiied protected forest. He found that the offence report submitted by the Forest Guard was true. He further submitted that offence has been committed under section 33, 41 and 42 of the Indian Forest Act 1927 (Bihar Amendment Act 1989)” (b) The learned lower court has also taken the view that the valid challan possessed by opposite party in this case could not be produced at the time of seizure because driver and khalasi had fled away. Learned lower court failed to appreciate the point that as to why the driver and khalasi fled away in case they were actually in possession of the valid papers in respect of the loaded boulders. The learned lower court also failed to appreciate the fact that the owner of the vehicle made no mention of the said challan in the first show cause filed by him on 22.11.2012. (c) The learned court has also failed to examine and analyze as to why a commercial vehicle like Haiwa Dumper Truck was allowed to remain stranded by the side of a road for a period of nearly three weeks and that too for a small defect like repair/replacement of tyres. Even if we assume for a moment that the owner of the vehicle didn't have sufficient money for these repairs, then the next question that remains unanswered is as to why the purchaser of stone boulders didn't make alternative arrangements for transportation of his boulders. There seem to be a lot of holes in this puncture theory, which has not been examined by the learned lower Court in detail. In view of the above, I find that there are serious defects in the impugned order and same is set aside. The case is remanded back to the court of Deputy Commissioner Hazaribagh with a direction to hear both the parties afresh and pass a reasoned order in light of the observation made above.” 7. This Court finds that the matter has been remanded before the appellate authority by citing reasons. This Court is not inclined to interfere with the order of remand. It is essentially within the domain of the appellate authority to examine the materials on record and pass fresh order. It is expected that the Deputy Commissioner - the appellate authority would call for the records from the confiscating 4 authority and examine the materials on record and pass fresh order in accordance with law after hearing the parties as directed by the impugned order. 8. In order to expedite the matter, the parties are directed to appear before the appellate authority on 18th March 2024 at 11.00 a.m. and upon their appearance, the records be called for, the parties be heard and appropriate reasoned order be passed in accordance with law latest by 18th May 2024. 9. The fresh order be communicated to the parties through speed
Decision
post. 10. This writ petition is disposed of with aforesaid observations and directions. 11. Pending interlocutory application, if any, is closed. Pankaj (Anubha Rawat Choudhary, J.)