JUDGMENT
S.K. Chattopadhayaya and D.N. Prasad, JJ.
1. We have heard the learned Counsel for the parties on the point of maintainability, limitation as well as on merit of this appeal and with the consent of the parties, this appeal is being disposed of at the stage of admission itself.
2. Mr. Sinha, learned Senior Counsel appearing on behalf of the Respondent, has raised an objection regarding maintainability of this appeal by submitting that as the learned Single Judge has passed the impugned order in Criminal Writ Jurisdiction case, no L.P.A. is maintainable against the said order. In support of his contention, he has relied on some unreported decisions rendered in L.P.A. Nos. 207/97(R), 49/98(R) and 63/95(R). Mr. Sohail Anwar, learned Counsel appearing on behalf of the appellants, on the other hand, has contended that when the order of suspension of licence of the Respondent was challenged in this Court, the same should have been in Civil Writ Jurisdiction and not. in Criminal Writ Jurisdiction. The writ was filed not for quashing any criminal proceeding but the order impugned was of civil nature and the Stamp Reporter should have been pointed out these defects of labeling the writ application as Cr. W.J.C. In this connection, he has referred to the decision in the case of Ram Krishna Upadhaya v. State of Bihar and Anr. 1995 (1) PLJR 213.
Mr. Sinha, however, urged that when the objection regarding labeling of the writ application was not taken by the appellant at the initial stage, the same cannot be entertained at this appellate stage.
3. In order to appreciate the rival contention of the learned Counsel, we may for a moment look to the order, which was impugned before the writ Court. It appears that the licence of the Respondent-Saw Mill was suspended on the ground of pendency of criminal proceeding against him. The same was subsequently affirmed by the appellate Authority subject to some modification, when the matter was remanded to it by this Court in Cr. W.J.C. No. 114/99 (R). Thus, in our view, the order impugned before the writ Court was of civil nature inasmuch as the Respondent-writ petitioner was affected by the said order with civil consequences. In the case of Ram Krishna Upadhaya (supra), the Division Bench has, held that the nature of proceeding for cancellation or revocation or suspension of licence is civil proceeding and can only be questioned by tiling a Civil Writ and not by a Criminal Writ. On the same analogy, it can be held in the present case that suspension of licence of the Respondent is a civil proceeding and Respondent ought to have been advised to file a Civil Writ instead of Criminal Writ. However on mere technicality a person should not be deprived of justice and, in our very the order impugned in this appeal by the appellant is of civil nature and Letters Patent Appeal is maintainable against that order. Though the writ applications were lavelled as Cr. W.J.C. in the aforesaid unreported decisions, the Writs were filed for quashing the First Information Report and seizure, etc. which were criminal proceedings in nature and, as such, this Court was of the opinion that the Letters Patent Appeal was not maintainable against the order passed in those criminal writ cases.
In the facts and circumstances of the case, we are of the opinion that this L.P.A. is maintainable against the impugned, order passed an Cr.W.J.C. No. 172 of 1999(R).
4. On the point of limitation, the Stamp Reporter has reported that the limitation for filing of this appeal expired on 26.11.1999 and the present appeal was filed on 6.12.1999 causing delay for about 19 days.
5. In the petition for coadunation of delay, the appellant has assigned reasons for delay in filing the appeal. We are satisfied that sufficient ground has been made out for condoning the delay in preferring this appeal. Accordingly, the limitation petition is allowed and the delay in filing the appeal is condoned.
6. Before entering into the merits of the case, some factual background is required to be portrayed. The Respondent (hereinafter referred to as ‘the petitioner’ for convenience) impugned the order dated 6.9.1999 passed by the Conservator of Forest, South Circle, Chaibasa, District Singhbhum (East) dismissing his appeal.
On 30.12.1998, a truck bearing Registration No. BR-18-9477 carrying different types of wood was intercepted by the forest guard and it was found that there were some differences in the size, piece and type of timbers loaded on the truck and mentioned in the. transit permit It was also found that transit permit was obtained by one J.P. Chawra and purchaser’s name was mentioned in the permit as ‘Chaibasa Timber Traders’ of which the petitioner is the owner. On the basis of the offence report, a criminal case bearing C/3-79-98 State v. Sanjay Kumar Sinha and Ors. was registered. The offence report is Annexure-1 to the writ application.
The petitioner contended before the writ Court that at the time of interception of the truck neither he was present nor he purchased any such timber nor received the said timber. The Divisional Forest Officer (Respondent No. 3) by letter dated 8.1.1999 asked for an explanation on the points enumerated in the letter and it. was directed that failing to give explanation the licence of this Saw Mill would be suspended. The said letter is Annexure-2 to the writ application. Such explanation was submitted and on 17.1.1999 on physical verification of the petitioner’s business premises Assistant Conservator of Forest found that the difference was marginal. However, the Respondent No. 3 not being satisfied with the explanation furnished by the petitioner suspended the licence of the Saw Mill by order dated 9.2.99 and asked the petitioner to show cause as to why the licence should not be cancelled. The petitioner submitted his show cause on 17.2.1999 contending that on stock verification, it was found marginally different. The show cause is Annexure-5 to the writ application.
As Respondent No. 3 did not pass any final order on the show cause tiled by the petitioner, he moved Respondent No. 2 in appeal but the same was not entertained because the matter was yet to be decided by the Respondent No. 3. However, the appellate Authority directed the Respondent No. 3 to dispose of the matter. By order dated 26.5.1999, the Respondent No. 3 passed an order that as the matter of illegal transportation of timber has been reported to the Chief Judicial Magistrate, Chaibasa, the licence of the petitioner shall remain suspended under Rule 3(6)(2) of the Bihar Saw Mills (Regulation) Rules, 1993 (hereinafter referred to as ‘the Rules’) till disposal of the Criminal case before the Chief Judicial Magistrate.
7. The petitioner preferred statutory appeal before the Respondent No. 2 but without any result and against the dismissal order dated 26.5.1999, the petitioner moved this Court in Cr. W.J.C. No. 115 of 1999 (R). This Court, by its order dated 18.8.1999, set aside the order of the appellate Authority observing, inter alia, that the licence could not have been suspended till the pendency of the criminal case but the same could only be suspended or cancelled for violation of the terms and conditions of the licence. However, this Court remanded the matter to the appellate Authority for fresh consideration. The order of this Court dated 18.8.1999 is Annexure-10 to the writ application.
8. The petitioner appeared before the appellate Authority by filing a fresh application with a plea that the provisions of Bihar Saw Mills (Regulation) Act, 1990 (hereinafter referred to as the Act) is not applicable m his case. However, the appeal was dismissed on 6.9.-1999, which order is Annexure-12 to the writ application. Being aggrieved by this order, the petitioner moved this Court in Cr. W.J.C. No. 172 of 1999(R) impugning the said order as well as that of the Respondent No. 3 dated 26.5.1999.
9. The learned Single Judge found that the impugned order of suspension was passed in violation of provisions of Section 10 of the Act. Thereafter, noticing the provisions laid down in Sections 7 and 10 of the Act and considering the allegation that the account produced by the licensee was not satisfactory inasmuch as less availability of stock than what was the report against the stock was shown, the writ Court opined that the provision of Rule 7 read with Rule 10 makes it clear that before passing of an order of suspension of licence the order of confiscation was required to be passed by the authority. As admittedly, no order of confiscation was passed in the instant case, it was held that the order of suspension cannot be sustained in law.
Further, according to the learned Single Judge, for minor irregularities showing less accounting of the wood lying in the Saw Mill, the order of suspension of licence for indefinite period cannot be justified. The Court found that the licence was suspended more than six months back and by this the petitioner has already been penalized for not carrying on his business for the aforesaid period. On that ground also, the writ Court was of the view that the order of suspension of the licence should not be continued. The writ was thus allowed with an observation that if in future the petitioner violates the provisions of Regulation, then the authority would be at liberty to initiate a proceeding against the licensee for cancellation or revocation of the licence.
10. Learned Government Pleader assailing the impugned order has urged that the learned Single Judge has misdirected himself in observing that the licensing authority may suspend or revoke the licence on being satisfied that the licensee has violated the provision of Section 10 of the Act inasmuch as the licence of the petitioner was suspended on the allegation that the licensee was involved in illegal transportation of illicit timber, which was in violation of the provisions of Section 5(c) and 10 of the Act and Rules 4(2)(c)(d)(f). His further contention is that the writ Court committed an error of law in holding that before passing the order of suspension of licence the order of confiscation was required to be passed by the authority.
11. In order to appreciate the contention of the learned Government Pleader, it is necessary to refer to some of the documents, which were annexed with the writ application. Admittedly, on the basis of offence report a criminal case was registered in which the petitioner was added as an offender. The only allegation against him was that on the transit permit, the name of his Saw Mill was mentioned by J.P. Chawara who had obtained the said transit permit in his own name. Thereafter, it appears, by letter dated 8.1.1999 the petitioner was directed to clarify/explain certain points mentioned in the said letter. This letter of notice to show cause is Annexure-2 which, inter alia, mentions that in the truck which was intercepted by the Forest Range Officer, 172 pieces Sal size and 80 pieces Bija size were alleged to have been booked to Chaibasa Timber Traders and it was noticed that instead of 250 pieces of wood mentioned in the transit permit 260 pieces of wood were found. These were of different configuration but the difference was not mentioned in the transit permit. Thus, the petitioner was asked to explain as to whether he had any agreement of purchase of such wood/timber with J.P. Chawara and also to explain other points relating thereto.
12. The explanation was given by the petitioner denying his business transaction with Mr. Chawara in respect of the seized wood. Even on 17.1.1999, the Assistant Conservator of Forest made physical verification of the petitioner’s business premises and found marginal difference of 1.1604 cubic meters. The registers were also verified and found satisfactory. On 18.1.1999, the petitioner was also given four transit permits for sale of timber.
13. However, not being satisfied with the explanation, Respondent No. 3 suspended the licence on the ground that licensee could not explain properly the difference in stock found on the physical verification. This order of suspension is Annexure-4 to the writ application which clearly indicates that the licence was suspended due to difference in stock and nothing more. On being asked to show cause as to why the licence would not be cancelled, the petitioner explained the matter in details, particularly mentioning that marginal difference is quite obvious and normal due to drying of timber and in cutting the same. The petitioner’s show cause was not disposed of within a reasonable time and thus, he moved the appellate Authority in appeal but the same was also not entertained because the matter was pending before the Respondent No. 3.
14. As noticed above the petitioner moved this Court in Cr. W.J.C. No. 114 of 1999(R) and his writ application was allowed by setting aside the order dated 28.6.99 holding that the licence could only be suspended or cancelled for violation of the terms and conditions of the licence and not otherwise. The matter was remanded to the Respondent No. 2. On remand the appellate authority, after considering the matter, again dismissed the appeal on 6.9.1999. However, the first order of suspension; that is, of 6.5.1999 shows that as the matter of illegal transportation of timber was reported to the Chief Judicial Magistrate, the licence of the petitioner was suspended under Rule 3(6)(2) of the Rules. It was ordered that the licence shall remain suspended till disposal of the criminal case before the Chief Judicial Magistrate. This order of the Respondent No. 3 was confirmed in appeal but this Court quashed the order of the appellate Court and remanded the matter for fresh adjudication in accordance with law.
15. Surprisingly enough, even on remand the appellate Authority did. not apply its mind to the relevant provisions of law and held the order of suspension valid but differed with Respondent No. 3 on the point of duration of suspension. He finally observed that he has pronounced that, the licence shall remain suspended till the disposal of the case in the lower Court. This part of his order is annulled. However, suspension of licence shall remain in force.
16. We fail to appreciate this attitude of the appellate Authority On one hand, he differed with the Respondent No. 3 about the duration of period of suspension of licence and set aside his order to that effect but has observed that the suspension of licence shall remain in force without specifying the duration. This order, in our view, is more harsh than the earlier order passed by the Respondent No. 3. If this order of the appellate Authority is to be accepted then the licence shall remain suspended even the criminal case is disposed of in favour of the petitioner and the matter is taken to the higher Court. Not only that if the verdict goes against, the petitioner or other co-accused, the matter may travel up to Supreme Court any by virtue of this order of the appellate Authority the licence of the petitioner shall remain suspended for an infinite period, which, in our view, is not at all justified because the allegation admittedly is not so serious.
17. Section 7 of the Act relates to grant, renewal, revocation or suspension of licence. Sub-section 5 of Section 7, which is relevant for us, may be quoted hereinabelow:
(5) If the licensing officer is satisfied, either of a reference made to it in this behalf or otherwise, that;
(a) the licensee has parted, in whole or in part with his control over the saw mill or saw pit or has otherwise ceased to operate or own such mitt or saw pit; or
(b) the licensee has without reasonable cause, failed to comply with any of the conditions of the licence or any direction lawfully given by the licensing officer or has contravened any of the provisions of this Act or the rules made thereunder; or
(c) the licence has, in the premises of the saw mill or saw pit-wood which he is not able to account for satisfactorily and consequently which is liable for confiscation under Section 10.
Then, without prejudice to any other penalty to which licensee may be liable under this Act, the licensing officer may. filter giving the licensee an opportunity of showing cause, revoke, or suspend the licence and forfeit the sum, if any, or any portion thereof deposited as .security for the due performance of the conditions subject to which the licence has been granted.
Thus, according to Sub-section 5(b) of the licensee, fails to comply with any of the conditions of the licence or any direction given to him or con travene any of the provisions of the Act or the Rules, his licence can be revoked or suspended. We have noticed earlier that by order dated 6.5.1999, the licence of saw mill was suspended under Rule 3(G)(2) of the Rules.
18. Now. let us look to the provisions as contemplated in Rule 3 of the Rules. Rule 3 deals with application for licence and other sub-sections, except Sub-section 6, deal with the procedure for applying for licence by a person. Sub-clause 6 of Rule 3 of the Rules reads as follows:
3(6) The licensing Officer, while refusing to grant the licence, shall consider the followings apart from any other facts which, in his opinion, justifies his action of refusing to grant the licence;
(1) The area of the saw mill or saw pit falls within the restricted area under Section 6 of the Act.
(2) The person of the company applying for the licence has been found guilty of any forest offence.
Therefore, Sub-clause 6(2) of Rule 3 of the Rules is a provision under which the licensing officer may refuse to grant licence to a person who has applied for the same even after complying with other provisions of Rule 3. There is nothing in Sub-clause 6(2) of Rule 3 which empowers the authority either to suspend, revoke or cancel the licence of a licensee. Thus, without entering into any other facts or law as sought to be advanced by the learned Government Pleader, we are of the firm view that the Respondent No. 3, the Divisional Forest officer without applying his mind and in utter violation of the provisions of the Act and Rules has passed the order dated 6.5.1999, which was also subsequently affirmed by the appellate Authority, Respondent No. 2. We are shocked to find that even the Conservator of Forest, said to be a responsible officer in the Forest Department, has affirmed the order of. suspension even without looking to the provisions of the Act and Rules. Not only that when this matter was remanded by this Court with a direction to the Respondent No. 2 to reconsider the matter in accordance with law, it was bounden duty of the Respondent No. 2 to go through the relevant provisions of the Act under which licence of a saw mill can be suspended.
10. No provision under the Rules has been brought to our notice under which a licence can be suspended, revoked or cancelled and this power only generates from the provisions as laid down under Section 7 of the Act. We have already noticed the provisions as laid down in Sub-section 5 of Section 7 of the Act which empowers the licensing Officer to take penal action by revoking or suspending the licence. Clause (c) of Sub-section (5) of Section 7 of the Act, on which much stress has been laid by the learned Government Pleader, shows that if the licensing officer is satisfied that the licensee has in his premises, that is, in the saw mill or saw pit-wood some wood, timbers for which he is not in a position to give satisfactory account arid consequently those woods/timbers are liable for confiscation under Section 10 of the Act. then his licence can be suspended or revoked subject to, however, affording reasonable opportunity.
20. It is not the case of the appellant that the respondent-licensee could not give satisfactory account for some excess wood found in his saw mill which were liable to be confiscated under Section 10 of the Act, The allegation, as noticed above, is that on interception of a truck some wood of different measurement were found and in the road permit the name of purchaser was mentioned as business premises of the respondent-licensee. Thus, the initial order of the Respondent No. 3 which was ultimately affirmed by the Respondent No. 2 does not show that on inspection some wood/timbers were found in excess in the business premises of the licensee for which he could not give satisfactory explanation and that these wood/timbers were liable for confiscation under Section 10 of the Act.
21. Under these circumstances, in our view, by no stretch of imagination, it can be said that either the Respondent No. 3 or Respondent No. 2 have applied their mind before passing and affirming the order of suspension of licence of the petitioner-licensee. Moreover, the Respondent No. 2 has failed to perform his duty in accordance with law even alter the matter was remanded to him by this Court. We strongly deprecate the action of both the aforesaid Officers by whose order the fundamental right of the respondent-licensee has been set at naught by not allowing him to carry on his business of saw mill for such along period.
22. We find no ground to interfere with the order of the learned Single Judge. This appeal has no merit which is, accordingly, dismissed with costs of Rs. 5,000/- (Five thousand) to be paid by both the aforesaid Respondent Nos. 2 and 3, the Conservator of Forest, South Circle, Chaibasa and the Divisional Forest Officer, Sought Division, Chaibasa, in equal share from their own pocket, to the petitioner-licensee within three weeks from today.