The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) NO. 12569 OF 2023 Aswini Sahu …. Petitioner Mr. Niraj Kumar Sethi, Advocate -versus- State of Odisha and others …. Opp. Parties Mr. Swayambhu Mishra, Additional Standing Counsel CORAM: JUSTICE K.R. MOHAPATRA Order No.
Decision
ORDER 18.09.2023 7. 1. 2. This matter is taken up through hybrid mode. Judgment dated 6th March, 2023 (Annexure-2) passed by learned Additional District & Sessions Judge-cum-Special Judge, Vigilance, Baripada, Mayurbhanj in FAO No. 22 of 2022 is under challenge in this writ petition, whereby dismissing the appeal, learned Appellate Court confirmed the order dated 4th July, 2022 passed by the Authorized Officer-cum-Assistant Conservator of Forest, Baripada Forest Division in O.R. Case No. 130B of 2019-20 confiscating the vehicle of the Petitioner bearing Registration No. OR-01-P-7555. 3. It is submitted by Mr. Sethy, learned counsel for the Petitioner that on 13th March, 2020 at about 12.30 P.M., the Forest Officer, Baisinga Section along with his staff while on patrolling duty detained the aforesaid vehicle of the Petitioner and subsequently seized it along with 20 quintals of firewood, which were being carried without any valid permit. Accordingly, O.R. Case No. 130B of 2019-20 was initiated for confiscation of the forest produce as well as vehicle of the Page 1 of 5 // 2 // Petitioner. The Authorized Officer holding that firewood were carried from Plot No.875 in Khata No. 26 of mouza Hotapur (Machhapada) recorded in the name of one Arabinda Sahu without any valid permit, confiscated the vehicle of the Petitioner vide order dated 4th July, 2022. Assailing the said order, the Petitioner preferred FAO No. 22 of 2022 under Section 56 (2-e) of the Orissa Forest Act, 1972 (for short ‘the Act’) and the impugned order under Annexure-2 has been passed. 3.1 It is further submitted by Mr. Sethy, learned counsel for the Petitioner that in view of the order dated 8th September, 2022 passed in W.P.(C) No.12126 of 2022 relying upon the case of N.V. Gopalaswamy –v- Assistant Conservator of Forests- cum-Authorized Officer, Nowrangpur Division and others, reported in 1990 (II) OLR 400, articles seized cannot be treated to be forest produce. In the case of N.V. Gopalaswamy, this Court held as under: ''minor (1) The expression “4. The above apart, there are provisions in the Rules to hold that fire-wood has to be regarded as forest produce for the purpose of obtaining transit permit visualised by Rule 4. We have said so because: forest "produce'' has been" defined in Rule 2(1)(h) of the Rules to mean "forest produce other than timber, fire-wood, charcoal and bamboos". This indicates that forest produce includes fire-wood. (2) While dealing with the question regarding cases in which permit shall not be required, Rule 5 states that no permit shall be required to cover transit of forest produce, inter alia, in the case of fire-wood not exceeding one headload, vide Clause (h) of Sub-rule (1). This would first show that as per Rule 5 fire- wood is a forest produce, and secondly transit permit is necessary in those cases where the quantity to be transported is more than one Page 2 of 5 // 3 // fire-wood headload. (3) Sub-rule (8) of Rule 7 under the heading" Application for permit and order thereon" shows that such an application is necessary for removal of from private holdings indicating thereby that fire-wood would be forest produce inasmuch as Rule 4 of the Rules requires transit permit for transit of forest produce alone. This apart, a reference to the Schedule of Rate for Forest Produce in Orissa Rules, 1977 shows that rates have been proved for fire-wood also as per Schedule II-C which would indicate that as per these Rules fire-wood has been taken to be forest produce. 5. Because of all the above, we have no hesitation in concluding that fire-wood is a forest produce. The next question for examination is as to when transit permit is required to transport fire-wood from one place to another. Though Rule 4 of the Rules has been couched in wide language which would indicate as if transit permit would be needed whenever fire wood is sought to be transported by land; rail or water, it would seem that such permit would be needed only when transport is involved from forest area to areas located outside it. We have come to this conclusion for these reasons: (1) The definition of fire-wood, as noted above as flowing from what has been stated in Sub- clause (a) of Clause (ii) of Section 2(g) of the Act, would show that fire-wood would be a "forest produce" when it is found in or brought from a forest. This shows that fire-wood would be a forest produce for the purpose of transit permit only when it is being brought from a forest. (2) Rule 5(1)(h) of the Rules has stated that no transit permit shall be required in case of fire- wood if the same does not exceed one head- load. This would indicate that carrying of head-load of fire-wood from forest was in mind of the rule-making authority. This transport could not have been from places outside the forest area. (3) It is common knowledge that when fire- wood is purchased from market for domestic Page 3 of 5 // 4 // purpose and the same is transported from the market to one's house, no transit permit is required. Indeed, Rules 5(1)(e) of the Rules exempts from the requirement of obtaining transit permit in some cases where the forest produce is needed for bona fide "domestic use.” 4. Relying upon the aforesaid case law, it is held that when firewood is not being transported from forest, no timber transit permit is required. 5. Mr. Sethy, learned counsel for the Petitioner, therefore, prays for setting aside the impugned order under Annexure-2 and to direct release of the vehicle of the Petitioner forthwith. 6. Mr. Mishra, learned Additional Standing Counsel does not dispute the position of law as settled by this Court in the aforesaid two case laws. He, however, submits that firewood were being transported without any valid permit. No intimation was also given to the forest officials for such transportation. No hammer mark was given in any of the logs transported in the vehicle of the Petitioner. He, therefore, submits that these material aspects should be taken into consideration while adjudicating the matter. 7. Upon hearing learned counsel for the parties and on perusal of the record, it appears that firewood weighing approximately 20 quintals were being transported on the vehicle of the Petitioner. The Deputy Ranger (P.W.1) stated that on 13th March, 2020 at about 12.30 P.M, they saw one Mahindra Pick- up Van bearing Registration No.OR-01-P-7555 was coming from Machhapada to Kadalia Chhak. On doubt, they detained the vehicle and on search, it was found that misc. firewood loaded in the vehicle and on asking the driver to produce Page 4 of 5 // 5 // authenticate documents in support of firewood loaded in the vehicle, he produced only photocopy of R.C. Book and his D.L. From the statement of the prosecution, it is clear that firewood was being loaded on the vehicle of the Petitioner. Further, the Forest Range Officer on enquiry found that such firewood were being cut and transported from Plot No.805 in Khata No.26 of mouza Hotapur (Machhapada), which belonged to one Arabinda Sahu. As the firewood were being transported from the private plot, the case laws as aforesaid are squarely applicable to the case in hand. As such, no T.T. permit is required for transportation of the said firewood. The objection of Mr. Mishra, learned Additional Standing Counsel with regard hammer mark is also not sustainable as it was not required when the firewood were being transported from a private plot. As such, I find sufficient force in the submission of learned counsel for the Petitioner. 8. Accordingly, the order dated 6th March, 2023 under Annexure-2 is set aside. It is directed that the vehicle of the Petitioner bearing Registration No. OR-01-P-7555 shall be released in his favour forthwith on proper acknowledgement, if it is not required in any other offence. 9. With the aforesaid observation and direction, this writ petition is disposed of. Urgent certified copy of this order be granted on proper application. bks Signature Not Verified Digitally Signed Signed by: BIJAY KUMAR SAHOO Reason: Authentication Location: High Court of Orissa, Cuttack Date: 21-Sep-2023 12:55:33 (K.R. Mohapatra) Judge Page 5 of 5