Thomas, Actg. C.J.
1. Can a financier (who advanced loan on the security of a motor vehicle) claim a right to be heard in confiscation proceedings involving the motor vehicle under Section 61-A of the Kerala Forest Act (for short the Act)? This question is raised in this writ appeal by the appellant which is a financing company. As the learned single Judge answered the question in the negative, this appeal has been filed under Section 5 of the Kerala High Court Act.
2. Facts necessary for this appeal are the following: One lorry (Ashok Leyland) was seized by some forest officials on 16-5-1995 alleging that the vehicle was used for committing a forest offence by transporting forest produces. The lorry was produced before the Divisional Forest Officer (first respondent), who was the authorised officer as per Section 61-A of the Act. First respondent issued notice to the registered owner of the vehicle (second respondent) to show cause why confiscation proceedings should not be initiated in the matter. The present appellant on coming to know of the proceedings, approached the Divisional Forest Officer and requested to hear him also before any final order is passed. But first respondent did not respond to the request. Then appellant filed the Original Petition under Article 226 of the Constitution for a writ of mandamus to the Divisional Forest Officer to afford him an opportunity to be heard before any order is passed under Section 61-A of the Act.
3. Learned counsel for the appellant submitted that the vehicle is actually owned by this appellant, though second respondent is shown as its registered owner as substantial amount of money was advanced to him on the security of the vehicle. The first contention is , that appellant being the owner of the vehicle has a right to establish the situation, envisaged in Section 61-B of the Act. Alternatively it was contended that even otherwise when appellant has a great stake in the vehicle he must be heard before any order affecting the vehicle is passed by the authorised officer.
4. But learned Government pleader contended that so long as appellant is not the registered owner of the vehicle, he has no right to be heard in confiscation proceedings, particularly so when the vehicle was not seized from his possession.
5. For deciding the question posed before us, it is appropriate to make a survey of the relevant provisions.
6. Section 52 of the Act empowers a forest officer or a police officer to seize the vehicle if he has reason to believe that a forest offence has been committed in respect of any timber or other forest produce by using the vehicle. Under Section 61-A the officer seizing the vehicle is obliged to produce it before an officer authorised by the Government. Subsection (2) confers power on the said officer to order confiscation of the contraband together with the vehicle used in committing such offence, if he is satisfied that a forest offence has been committed in respect of the forest produce by using the said vehicle. Sub-section (2) reads thus:
“(2) Where an authorised officer seizes under Sub-section (1) of Section 52 any timber, charcoal, firewood or ivory which is the property of the Government or where any such property is produced before an authorised officer under Sub-section (I) of this section and he is satisfied that a forest offence has been committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest offence, order confiscation of the property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in committing such offence.”
7. The above sub-section shows that a discretion has been conferred on the authorised officer to decide whether the vehicle needs confiscation in a given situation. Conditions precedent for exercising such discretion are : (1) the seized vehicle should have been produced before him, (2) the officer should have reached satisfaction that a forest offence had been committed by using the vehicle. When those conditions have been met, the authorised officer has to decide whether in the particular situation confiscation should necessarily be ordered. In other words, even if those conditions are met, the authorised officer can decline to order confiscation of the vehicle if there are just or sufficient reasons for doing so. Further again, the authorised officer has certain other restrictions also in ordering confiscation and they are provided in Section 61-B of the Act.
8. The first restriction in Section 61-B is that the authorised officer cannot pass the order of confiscation without giving a notice in writing to the person from whom the vehicle was seized informing him of the grounds for such confiscation. Second restriction is that an opportunity of making a representation in writing and a further, opportunity of being heard in the matter should be afforded to such person. Third restriction is contained in Sub-section (2) of Section 61-B, i.e., if the owner of the vehicle proves that the vehicle was so used without his knowledge and also that the person in charge of the vehicle had taken all reasonable and necessary precaution against such use (vide State v. Mathew (1995 (3) Ker LT 772). If the owner succeeds in proving the above postulates, the authorised officer loses his power to order confiscation of the vehicle.
9. It is mandatory on the part of the authorised officer to issue notice to the person from whom the vehicle is seized. However, it is not mandatory that notice should be issued to the owner, but it is open to the owner to come forward to prove the aforesaid facts. The owner of the vehicle in this context need not necessarily be the registered owner. The actual owner may sometimes be different from the registered owner of the vehicle. (See Kunjuraman v. Sraa Saramma, 1986 Ker LT 742) and Saidu Mohammed v. Rama, 1995 (2) Ker LT 343). So a person who is not the registered owner, but the actual owner is entitled to avail himself of the benefit envisaged in Section 61-B(2) of the Act.
10. But if a person who is neither Us registered owner nor its actual owner, nor the one from whom the vehicle is seized is vitally interested in the protection of the vehicle, can he come forward to plead that the vehicle should not be confiscated on account of very cogent reasons? If he desires to be heard, can the authorised officer refuse to hear him?
11. We have already highlighted that the power to order confiscation as envisaged in Section 61-A(2) of the Act is a discretionary power even if all the conditions are satisfied. The word “may” employed in Section 61-A(2) in the context denotes that it is nothing but a discretionary power. It is settled principle that discretionary power conferred on a statutory or administrative authority should be exercised fairly and reasonably and must not be arbitrary and fanciful (Jaisinghani v. Union of India, AIR 1967 SC 1427). If so, when person claiming real interest in the vehicle informs the officer that he has to appraise the former of certain facts which might help to decline confiscation of the vehicle, it is improper to shut him out. True, the authorised officer is not obliged to go in search of all persons interested in the vehicle. But if any person who is really interested in the vehicle comes forward on his own requesting that he may also be heard before confiscation is ordered, fairness demands that he also is heard. Pre-empting him from the hearing province will amount to negation of justice and fair play.
12. For the aforesaid reasons we direct the first respondent to afford the appellant an opportunity of being heard before ordering confiscation of the vehicle seized.
13. Writ appeal is disposed of accordingly.