JUDGMENT
G.T. Nanavati, C.J.
1. The petitioner’s truck was seized by forest Range Officer on a reasonable suspicion that it was involved in commission of a forest offence. In the proceedings initiated under Section 66 of the Orissa Forest Act, 1972 (for short “the Act”), the Authorised Officer passed an order for confiscation of the truck. Aggrieved by that order, the petitioner preferred an appeal under Section 56 (2-e) to the District Judge having jurisdiction over the area in which the truck was seized. The appeal having been dismissed, the petitioner has filed this petition.
2. When this petition earlier came up for hearing before a Division Bench, a contention was raised on behalf of the petitioner that under Section 56, the concerned District Judge has the power to hear and appeal, and, therefore, disposal of his appeal by the Sessions Judge, even though he also happens to be the District Judge, should be regarded as ultra vires. In support of that contention, the Division Bench decision of this Court in Narahari Behera v. State of Orissa, 64 (1987) CLT 233, was relied upon. In that case, the appeal preferred under Section 58 (2-e) of the Act was heard and disposed of by the Sessions Judge, who was also the District Judga for that area. It was held that the order passed by the Sessions Judge was without jurisdiction. The reasons given for taking that view are quoted below:
“The District Judge and the Sessions Judge might be the same person and in this case we can take judicial notice of the fact that the same person functioned as the District Judge and Sessions Judge. But the functions of a District Judge under the Civil Procedure Code and the functions of a Sessions Judge under the Criminal Procedure Code are quite distinct and different. Sub-section (2-a) envisages an appeal to the District Judge and not to the Sessions Judge. As a matter of fact, the appeal was preferred to the District Judge and not to the Sessions Judge, but the appeal was disposed of by the latter. No doubt, it is a technical violation of the provisions of Sub-section (2-e) of Section 56 of the Act yet a remote possibility of prejudice to the case of the petitioner in deciding his appeal by an authority not prescribed according to law cannot be excluded. In fact, there is possibility of a suggested argument that the appeal was disposed of by a Judge having no jurisdiction according to law. This being the position, the safer course is not to uphold the order patently passed without jurisdiction.”
The Division Bench hearing this petition was probably of the opinion that the decision rendered in the case of Narahari Behera (supra) is not correct and, therefore, desired that this matter should be heard by a larger Bench. Therefore, this petition is now placed for hearing before this larger Bench.
3. What is submitted by the learned counsel for the petitioner is that under Section 56 (2-e), an appeal against an order of confiscation lies to District Judge. Even though District Judge and Sessions Judge for the area may be the same, the legislature has thought it fit to confer the power on District Judge only. Therefore, the District and Sessions Judge, Puri, could have heard and disposed of the appeal in his capacity as District Judge only. As the Sessions Judge, Puri, had no jurisdiction whatsoever to deal with and dispose of the petitioner’s appeal, the decision rendered by him should be regarded as ultra vires. He further submitted that while hearing a Criminal Appeal by Sessions Judge, different principles of appreciation of evidence are applied and, for that reason, it should be held that prejudice was caused to the petitioner. He also submitted that the two capacities being different, disposal of an appeal made to the District Judge by the Sessions Judge should not be regarded as a matter of technicality only but should be treated as a matter of substance in view of lack of jurisdiction to hear and decide the same.
4. In our opinion, this cannot be considered as a case where the Judge hearing the appeal had no jurisdiction to hear the appeal, but it is a case of wrong description of the Judge having jurisdiction to bear the same. It is true that Section 56 (2-e) provides an appeal to the District Judge, and not to the Sessions Judge having jurisdiction over the area in which the property has been seized. Therefore, it cannot be gainsaid that the District Judge is vested with the power to hear and dispose of the appeal. But, where the District Judge and the Sessions Judge was the same person, it cannot be said that he did not have the power to decide the appeal merely because in the Judgment he described himself as the Sessions Judge. It is not in dispute that Mr. C.R. Pal. who decided the appeal, had jurisdiction to decide the same, but the contention is that he as the Sessions Judge had no jurisdiction to decide it. Therefore, this cannot be said to be a case where there was total lack of jurisdiction to hear the appeal. It is obvious that Mr. Pal wrongly described himself as Sessions Judge, while giving the judgment. This mistake appears to have been committed as the appeal filed by the petitioner was wrongly described as Criminal Appeal. In all probability, the petitioner himself filed the appeal as a Criminal Appeal. We fail to appreciate how because of wrong description of the designation, the petitioner, and for that matter any appellant preferring an appeal under Section 56 (2 e) of the Act, can be said to have suffered prejudice. The oappeal was against an order of confiscation and, therefore, it appears to have been registered as a Criminal Appeal. Therefore, neither as a result of wrong nomenclature of the appeal, nor as a result of wrong description of the designation of the Judge, the petitioner can be said to have suffered any prejudice.
5. It is now well-settled that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be within its power under any other rule, and that the validity of an order should be judged on a consideration of its substance and not its form. The decisions of the Supreme Court in P. Rajakotaiah v. Union of India, AIR 1950 SC 232, and Hukumchand Mills Ltd. v. State of M. P., AIR 1954 SC 1929 make this position clear. In Indian Aluminium Co. v. Kerala State Electricity Board, AIR 1975 SC 1967, the Supreme Court has also observed as under:
“……it there is one principle more well-settled than any other, it is that, when an authority takes action which is within its competence, it cannot be held to be invalid, merely because it purports to be made under a wrong provision, if it can be shown to be within its power under any other provision. A mere wrong description of the source of power-a mere wrong label cannot invalidate the action of an authority, if it is otherwise within its power.”
6. In Smt. Santi Bai v. State of Orissa, (1990) 3 OCR 518, a similar contention was raised. This Court, after referring to its earlier decision in Narahari Behera’s case, has observed as under:
“In that decision judicial notice was taken of the fact that the District Judge and the Sessions Judge might be the same person. In the present case, on a persual of the cause title of the judgment, Annexure-5, it is seen that the presiding officer was described as ‘the District Sessions Judge Kalahandi, Bhawanipatna. So, it is a fact that Shri G.S. Patra heard the matter as a District Judge also. So the mere nomenclature of the appeal by the office as Criminal Appeal, instead of registering it as a Miscellaneous Appeal, cannot interfere with the powers of the District Judge in any manner, In the said decision it was felt by this Court, in the facts of that case, that a remote possibility of prejudice to the case of the petitioner in deciding the Appeal by an a authority not prescribed according to law cannot be excluded. In the present case the petitioners have failed to satisfy so as to how at all any prejudice was caused to them when the matter was heard as a Criminal Appeal. So the decision in Narahari Behera’s case (supra) would not be applicable to the facts of the present case. In any event, as Shri G.S. Patra heard the matter as District Judge also, by no stretch of imagination can it be said that he had no jurisdiction to pass the impugned judgment Annexure-5.”
This decision supports the view that we are taking.
7. We, therefore, hold that the opinion expressed by this Court in Narahari Behera’s case (supra) is not correct. We further hold that the decision given in the appeal filed by the petitioner is not ultra vires or illegal, even though the appeal was wrongly described as a Criminal Appeal and the learned Judge signed the judgment wrongly describing him as the Sessions Judge,
8. In the result, this petition fails and is dismissed. No order as to costs.
G.B. Pattnaik, J.
I agree.
P.C. Naik, J.
I agree.