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SCA/755/2011 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 755 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA : Sd/-
=======================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=======================================================
TAHERBHAI
SAKIR - Petitioner(s)
Versus
STATE
OF GUJARAT
THROUGH
THE SECRETARY & 2 - Respondent(s)
=======================================================
Appearance :
MR
MA KHARADI for Petitioner(s) : 1,
MR HIMANSHU K PATEL AGP for
Respondent(s) : 1,
None for Respondent(s) : 2 -
3.
=======================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 22/02/2011
ORAL
JUDGMENT
The
present petition has been filed by the petitioner under Articles 14,
19 and 21 of the Constitution of India, under Articles 226 and 227
of the Constitution of India, under the provisions of the Indian
Forest Act and under the provisions of the Bombay Forest Rules for
the prayer that the impugned orders at Annexures-A, B & C passed
by the authorities may be quashed and set aside and the licence of
the petitioner may be permitted to be operated on the grounds stated
in detail in the memo of petition.
It
is contended that the impugned orders passed by the authorities are
arbitrary and suffers from the vice of malafide. It is also
contended that the respondent authorities have committed an error in
cancelling the saw mill licence on the basis of inadmissible
evidence. It is contended that it ought to have been considered that
the petitioner has been carrying on business for about 15 years and,
therefore, the impugned orders are arbitrary and illegal. It is also
contended that the employees of the petitioner, who are caught, were
threatened and their statements are recorded under pressure and
duress, which has not been appreciated.
Learned
counsel, Mr.Kharadi for the petitioner referred to the impugned
orders at Annexures-A, B & C and submitted that as discussed in
the impugned orders, what has been alleged is that the owner of the
Tempo had brought woods from M.P., for which, the petitioner, who is
the owner of the saw mill, is not attributed with any role. He
again referred to the orders and submitted that the copies of the
panchnama have not been given, which has resulted into denial of
fair opportunity and, therefore, the matter may be remanded. In
support of his submission, learned counsel, Mr.Kharadi referred to
and relied upon the judgment of the Hon’ble Apex Court reported in
(2005) 12 SCC 282 in case of Shankarlal V/s State of
Maharashtra & Ors. and submitted that as observed in this
judgment, the matter was remanded for deciding afresh. He,
therefore, submitted that same course may be adopted. He referred to
the orders as well as other papers and submitted that even if it is
accepted that wood cutting has taken place at the saw mill, he is
not attributed with other role of bringing woods from M.P.
Therefore, considering the provisions of law, the licence may be
renewed as it would affect his livelihood.
Learned
counsel, Mr.Kharadi also produced on record the xerox copy of the
licence, which has not been produced with the petition though
renewal thereof has been sought. Referring to the copy of the
licence, he submitted that the authority has made a reference to
Clause 7(a) of the conditions of the licence, which is not to be
found in the licence of the petitioner. He also again emphasized
that no opportunity has been given to cross-examine the witnesses
and the panchnama has also not been prepared in the presence of the
independent witnesses. He submitted that when the woods are stated
to have been brought from M.P., no statement is recorded from M.P.
and they are not permitted to be cross-examined and, therefore, the
opportunity has been denied and the impugned orders are passed in
violation of rules of natural justice. He further submitted that
offence under Section 26(1)(f) of the Indian Forest Act registered
against the Tempo owner is not attributed to the petitioner. He,
therefore, submitted that the present petition may be allowed.
Learned
A.G.P., Mr.Patel referred to the impugned orders and submitted that
three authorities have passed the orders giving concurrent findings
with regard to illegal cutting of the woods, which have been brought
from the State of M.P. He referred to the papers and submitted that
as per conditions of the licence, before such cutting could take
place in the saw mill, necessary documents are required to be
produced and verified, which is not done. He submitted that as can
be seen from the statements recorded, earlier there was a talk with
the petitioner and, thereafter, the woods have been brought to the
saw mill for the purpose of cutting suggesting involvement of the
petitioner in the offence. He submitted that the submission with
regard to the panchnama or the opportunity also may not be accepted
as the panchnama has been drawn in the presence of the petitioner
and it has never been demanded though the petitioner has been
represented by the lawyer before the authorities. He also submitted
that the woods have been brought from the M.P. for the purpose of
cutting to the saw mill of the petitioner and when they have been
caught red handed, such contentions have been made but the
statements of the witnesses including the owner of the Tempo and
others clearly suggest about the involvement of the petitioner, who
is owner of the saw mill. He submitted that it cannot be suggested
that he cannot be attributed with any further role in bringing these
woods when to his knowledge, the woods have been brought from M.P.
for the purpose of cutting to his saw mill. He also pointedly
referred to the order passed in Appeal by the Conservator of
Forests, Vadodara as well as the order passed by the Deputy
Secretary in Revision. He submitted that the present petition may
not be entertained as the offences under the Forest Act are required
to be dealt with seriously without any sympathy.
In
view of the rival submissions, it is required to be considered
whether the present petition can be entertained or not.
Though
the submissions have been made by the learned counsel, Mr.Kharadi
raising the contention about the denial of opportunity and the
violation of rules of natural justice, as it is reflected from the
impugned orders, it cannot be said that he has not been given any
opportunity, particularly when the petitioner has been represented
by the lawyer before the authorities. The submission that the copy
of the panchnama has not been given and it could have been drawn in
the presence of independent statements is also misconceived as the
same contention could have been raised before the authorities below
and in fact, he has been represented by the lawyer. There are
statements, which have been recorded, which clearly suggest his
involvement, which has also been discussed with regard to
conversation of mobile phone between the petitioner and the owner of
the Tempo.
Further,
the submission with regard to the fact that he cannot be attributed
with any other involvement as the woods have been brought from the
M.P. as stated by the owner of the Tempo and, therefore, he cannot
be said to be involved is also misconceived. It is required to be
mentioned that as rightly submitted that woods have been brought
from M.P. by the Tempo owner as stated in his statement that to the
knowledge of the petitioner, he had brought for the purpose of
cutting, which clearly suggests about his involvement. Further, it
was incumbent upon him when he has been running his business since
15 years that before woods would be permitted to be cut, necessary
documents or papers are required to be verified to confirm that they
are not illegal. Therefore, such contentions, which have been raised
as an afterthought, cannot be readily accepted in light of the
discussion made.
It
is also required to be mentioned that Section 26 of the Forest Act
provides with regard to the prohibited activity and what has been
required to be considered is whether the conditions of the licence
have been violated or not though licence, which has been produced,
does not contain Clause 7(a). Clause 7 clearly provides that if any
wooden log, which has been brought illegal or transported illegally,
would be cut without verification of necessary documents, it would
be considered as property of the Government as envisaged under
Section 69 of the Indian Forest Act.
The
Rules of the Bombay Forest Rules read with Manual are also required
to be considered in the facts of the present case. Rule 88 provides
for Prohibiting conversion of timber within a mile of forests. Rule
95 provides for mode of application for permission to cut and remove
trees or timber. Rule 98 clearly provides for cutting etc. to be
done after marking. There is procedure with regard to transit of the
forest produce with necessary document. Chapter 5 refers to the
cutting of trees, cultivation, etc. in protected forests.
As
stated above, the woods have been brought from M.P., which have been
cut in the saw mill of the petitioner without verification of
necessary documents. Therefore, the submissions, which have been
made cannot be accepted in light of the aforesaid discussions,
particularly when these contentions have also been discussed in the
impugned order of the Conservator of Forest while dismissing the
Appeal.
Reliance
placed by the learned counsel, Mr.Kharadi on the judgment of the
Hon’ble Apex Court reported in case of Shankarlal
(supra) to support his submission that the matter may be remanded
also cannot be accepted as the facts were different. In that
case, after show cause notice, the order of confiscation was passed,
which was challenged and, therefore, the matte was remanded. In the
facts of the present case, it is evident that the petitioner has
been given sufficient opportunity and he has been represented by the
lawyer and all the authorities
have after giving opportunity of hearing passed the impugned orders,
which does not call for any interference by this Court.
It
is well accepted that such offences under the Forest Act are
required to be considered in proper perspective without any
sympathy, which may otherwise have an adverse effect on the climate
and the natural resources.
In
view of the discussions made hereinabove, the present petition
deserves to be dismissed and stands dismissed accordingly. No costs.
Sd/-
(RAJESH
H.SHUKLA, J.)
/patil
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