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Ganga Prasad Chaubey v. State Of U.P. Thru' Secy. Ministry Of Forest & Ors. - WRIT - C No. 39996 of 2004  RD-AH 4533 (15 March 2007)
Court no. 19
Civil Misc. Writ Petition No. 39996 of 2004
Ganga Prasad Chaubey............................................Petitioner
State of U.P.................................................................Respondents.
Hon. S.N.Srivastava, J.
By means of this writ petition, the petitioner has prayed for quashing the order dated 5.11.2003 passed by the Prescribed Authority/Divisional Forest Officer Kaimoor Jeev Man Prabhag Mirzapur and als9 the order dated 23.8.2004 passed by respondent no. 2 Special Secretary/Prescribed Authority Forest Department U.P.Lucknow.
In the instant case, the truck of the petitioner bearing no. MP-04/B 7393 was confiscated by the officials of the Forest Department on the ground that it was loaded with sand illegally excavated by the petitioner and also recovery of horns of black buck was shown from the aforesaid Truck.
Learned counsel for the petitioner urged that the petitioner was implicated in the offence allegedly on the ground of infringing different provisions of the Indian Forest Act and the Rules framed thereunder. He also urged that the truck was taken from the petitioner's residence by the forest officials and was detained and parked on the main road of the regional office of Forest settlement and thereafter sand was
Illegally loaded on the truck and petitioner was challaned on a trumped up charge of excavating and transporting mines and minerals (Sand) in the forest area alongwith recovery of one pair of horns of black buck. It is further urged that from the own record, it is eloquent that the entire case is based on trumped up charge as neither any recovery was made from the petitioner as alleged nor the petitioner was involved in illegal excavation of sands. He further urged that all these facts were brought to the notice of the appellate authority but the same were not considered and the appeal was wrongly dismissed. He further urged that power to decide the question of release or confiscation of truck and sand given under section 52 A to the Forest Settlement Officer was ultra vires and vitiated in law. In reply, learned Standing counsel urged that the amendment was rightly made under section 52 A of the Forest Act and the Forest Settlement Officer was conferred power under section 52 A of the Act and it was intra-vires. He further urged that the impugned order passed by the Prescribed Authority and the appellate authority were rightly passed and the findings are borne out from the record.
I have considered the arguments of the learned counsel for the parties and perused the materials on record.
From a perusal of the counter affidavit (Annexure 2) it appears that on the order of the Forest Officer Churk, the petitioner's truck was seized by the forest officials and one of the foresters namely Akhilesh Chand Yadav submitted a report about seizure of the truck on 11.7.2003. From a perusal of the report it transpires that there is no reference of transportation of the sand and it is confined to recovery of horns of black buck. It further transpires from Annexure 3 to the writ petition which is a notice dated 25.7.2003 issued by the Prescribed Authority/Divisional Forest Officer Kaimur Jeev Man Prabhag Mirzapur that reference relates to transportation of sand and there is no reference about recovery of horns of black buck. It is further clear from Annexure 4 to the writ petition, which is objection of the petitioner that the petitioner had raised the question in his objection that he never went to any place for excavation or transportation of sands. It would further transpire from the objection aforesaid that the petitioner refused to pay unauthorized illegally payment to the forest officials while passing through the forest area and therefore, as a pressure tactics, the truck was illegally taken from the residence of the petitioner and was confiscated and parked on main road of the Regional Office at Churk where the sand was got loaded by the labourers of the Forest Department. Various other pleas were also pressed into service including that the petitioner is the owner of the truck and further that the name of the Driver is not mentioned which goes to show that truck was not involved in illegal transportation of sands. It is further clear from the order passed by the Prescribed Authority that he has not considered the petitioner's objection at all on merits nor he has taken note of the fact about discrepancy relating to recovery and also non-mention of recovery of sands in the notice and various other documents prepared by the Forest Department. It is further clear that neither the appellate authority nor the prescribed authority have considered any aspects raised by the petitioner either in the objection or in the memo of appeal and therefore, the conclusion is irresistible that the impugned orders were passed without considering the materials on record and without recording any reasons and facts whether the petitioner was actually involved in the offences as alleged in violation of the provisions of the Forest Act.
In view of the facts referred to above, this court is of the view that the Prescribed Authority should have considered the matter on merits in accordance with law and the impugned orders which were passed by the authorities concerned without application of mind and without recording of reasons in support of the conclusions are unsustainable in law and therefore, the impugned orders are liable to be quashed.
In so far as next question challenging the vires of of Sections 52 A to 62 D of the Indian Forest Act inserted by Amendment is concerned, the Court is of the view that this is not a fit case to dwell on the question of vires and the same may be considered and decided in appropriate case.
In view of above discussions, the writ petition is allowed and the impugned order dated 5.11.2003 passed by the Prescribed Authority/Divisional Forest Officer, Kaimur Jeev Van Prabhag Mirzapur and the order dated 23.8.2004 passed by Special Secretary/Prescribed Authority Forest Department U.P.Lucknow are quashed and the matter is remanded to the Divisional Forest officer/Prescribed Authority to decide the matter on merits in accordance with law in the light of the observations contained in the body of this judgment.
Considering the facts of the instant case, this Court is also of the view that the truck which was confiscated and is standing stationary since the year 2003 be released within one week from the date of production of a certified copy of this order before the divisional Forest Officer Kaimur Van Jeev Vibhag Mirzapur subject to his furnishing surety in the sum of Rs. 1 lac.
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