The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WP(C) No.20668 of 2017 Authorized Officer-cum-DFO, Ghumusar South Division, Bhanjanagar …. Petitioner Mr. S.S. Mohapatra, AGA -versus- Tamala Pradhan & another …. Opposite Parties Mr.A.R. Dash, Adv. (For O.P. No.1) CORAM: THE JUSTICE S.PUJAHARI Order No. ORDER 30.08.2022 08. 1. The Petitioner in this writ petition challenges the order dated 6.5.2017 passed by the learned Addl. District Judge, Bhanjanagar in FAO No.02 of 2017 setting aside the order dated 15.12.2016 passed by the Authorized Officer-cum-D.F.O., Ghumusar South Division, Bhanajanagar in C.P No.26/2015-16. 2.
Legal Reasoning
Heard the learned counsel for the Parties. Page 1 of 8 // 2 // 3. The brief facts of the case are that on 22.01.2016, while the Forest Guard of Jiliba Beat was performing patrolling duty in Kumarsuni Reserve Forest, he found some persons being engaged in loading the logs in the tractor i.e. New Massey Ferguson Tractor 24D1 bearing engine No.S3251G06716 and Chasis No.MEA 8D061LE2029910 in the reserved forest. On seeing the Forest Guard they fled from the spot. The Forest Guard seized the tractor along with logs, and thereafter U.D. Case No.69 of 2015-16 was registered for commission of the forest offence, so also confiscation proceeding under Section 56 of the Orissa Forest Act was initiated in respect of the forest produce. However, the Opposite Party No.1 took the stand that she had engaged the tractor with the O.F.D.C and Sukadeva Gouda, Field Assistant of the O.F.D.C had engaged the said tractor for transportation of the same. Said Sukadeva Gouda has deposed that he had engaged the tractor of the Opposite Party No.1 @ Rs.700/- per trip on the direction of S.D.M., O.F.D.C to collect the logs and keep the same in Tikarapada village and intimated the measurement of the // 3 // same. Since Sukadeva Gouda, Field Assistant, unauthorizedly used the said tractor in Kumarsuni reserved forest, the tractor and trolley along with forest produce were confiscated. No doubt, in this case the said order of confiscation has been passed for alleged removal of logs from the reserved forest unauthorizedly under Section 27 of the Orissa Forest Act. However, learned District Judge set aside the order of the Authorized Officer-cum-D.F.O., Ghumusar South Division, Bhanjanagar vide order dated 06.05.2017. 4. Learned counsel for the Petitioner submitted that the tractor of the Opposite Party No.1 was engaged with the O.F.D.C. and one of the staff of the O.F.D.C misused the tractor for transportation of the logs. Therefore, the Opposite Party No.1 cannot wriggle out of the confiscation by stating that she had no knowledge that the tractor was used for illegal transportation of the logs. 5. Learned counsel for the Opposite Party No.1, however, does not dispute the fact that the tractor was engaged with the O.F.D.C for transportation of logs and // 4 // in this case logs were transported from the reserved forest, as alleged. But, Opposite Party No.1’s plea is that she had no knowledge that the tractor with trolley engaged by him to be used illegally in any manner for transportation of the logs or for any act in violation of the provisions of the Orissa Forest Act or the Rules and that she had taken all reasonable and necessary precautions against use of the Tractor for any illegal purpose.
Legal Reasoning
Therefore, the learned counsel appearing for the opposite
Decision
party no.1 submitted that the writ petition is liable to be dismissed. 6. Reverting back to the case at hand, there is no dispute in this case that the opposite party no.1-owner had engaged his Tractor in the O.F.D.C., a Government of Odisha undertaking for transportation of logs. The said Authority also permitted to deal with the logs, is not in dispute. The Field Assistant also stated that the said Tractor had been engaged for transporting the logs which is stated to have been unauthorizedly felled to safe place, as per the direction of the S.D.M., O.F.D.C. hiring the Tractor of the opposite party no.1. As it appears, the // 5 // Authorized Officer held that the driver was also an accused of felling the trees unauthorizedly as axe and saw were found with him and transportation of the same. However, the same was not established. No exception can be taken also to the fact that as he was also going with axe and saw for collection of fell trees which may be to make it fit for loading and transporting, especially when on the direction of the official of the O.F.D.C., the hirer of the vehicle, as such, it cannot be said that the axe and saw were taken by him for felling of the trees. Furthermore, logs which were earlier transported from there, were also in the custody of the OFDC. The appellate Court also appreciating the aforesaid that it was the OFDC which committed the offence and, as such, the tractor of the petitioner is not liable for confiscation, passed the impugned order. From the materials on record, it clearly emerges that a forest offence has been committed in respect of forest produce, i.e., the logs, which whenever and wherever found is a forest produce, inasmuch as the same was removed from a reserved forest without the T.T. permit and also // 6 // without the authority from the Forest Department, may be by the O.F.D.C. In such circumstances, the forest produce along with the tractor is liable for confiscation, inasmuch as Section 56(2-a) of the Orissa Forest Act speaks that when forest offence is committed in respect of forest produce, such as tools, ropes, chains, boats, vehicles or cattle used in commission of such offence is liable for confiscation in a proceeding under Section 56 of the Orissa Forest Act. But, such articles are not liable for confiscation when the owner shows that the same is used without his knowledge or connivance or of his agent, if any, or the person in charge of the tool, rope, chain, boat, vehicle or cattle, in committing the offence and each of them had taken all reasonable and necessary precautions against such use, as envisaged in Section 56(2-c) of the Orissa Forest Act. Here in this case, the opposite party no.1 admittedly engaged his tractor in the OFDC and the OFDC has misused the same. Therefore, even if no dispute that forest offence is committed against a forest produce using the opposite party no.1’s offending tractor with trolley, it cannot be // 7 // said that the opposite party no.1 had any knowledge or connivance in commission of the forest offence nor his agent, i.e., driver had any knowledge or connivance in commission of forest offence. So also, it cannot be said that all of them had not taken any care or precautions, inasmuch as, in such circumstances, there was no occasion on their part even remotely to believe that the tractor with trolley would be used by the OFDC, a Government of Odisha Undertaking dealing with logs and other forest produce, in transporting logs without any authorization / authority, so that she could have instructed her driver not to use the same without verifying the authority to transport such logs or the driver could have demanded such authority from the O.F.D.C. before loading the forest produce / logs, more so when the same was kept in the custody of the O.F.D.C. Thus, the confiscation of the tractor for the alleged forest offence is unsustainable as the opposite party no.1 had discharged the burden as envisaged under Section 56(2-c) of the Orissa Forest Act to wriggle out a confiscation of his vehicle, which is otherwise liable // 8 // for confiscation under Section 56(2-a) of the Orissa Forest Act. 7. Accordingly, the writ petition filed by the Authorized Officer-cum-D.F.O., Ghumusar South Division, Bhanjanagar challenging the order of the learned Addl. District Judge, Bhanjanagar, being devoid of merit stands dismissed. PKS/MRS Judge (S. Pujahari)