{"id":61606,"date":"2011-02-22T00:00:00","date_gmt":"2011-02-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/taherbhai-vs-through-on-22-february-2011"},"modified":"2015-07-04T04:12:55","modified_gmt":"2015-07-03T22:42:55","slug":"taherbhai-vs-through-on-22-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/taherbhai-vs-through-on-22-february-2011","title":{"rendered":"Taherbhai vs Through on 22 February, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Taherbhai vs Through on 22 February, 2011<\/div>\n
Author: Rajesh H.Shukla,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/755\/2011\t 7\/ 7\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 755 of 2011\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE RAJESH H.SHUKLA\t\t:\tSd\/-\n \n \n=======================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=======================================================\n\n\n \n\nTAHERBHAI\nSAKIR - Petitioner(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT\n \n\nTHROUGH\nTHE SECRETARY & 2 - Respondent(s)\n \n\n=======================================================\nAppearance : \nMR\nMA KHARADI for Petitioner(s) : 1, \nMR HIMANSHU K PATEL AGP for\nRespondent(s) : 1, \nNone for Respondent(s) : 2 -\n3. \n======================================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE RAJESH H.SHUKLA\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 22\/02\/2011\n \n\nORAL\nJUDGMENT<\/pre>\n
The
\n\tpresent petition has been filed by the petitioner under Articles 14,
\n\t19 and 21 of the Constitution of India, under Articles 226 and 227
\n\tof the Constitution of India, under the provisions of the Indian
\n\tForest Act and under the provisions of the Bombay Forest Rules for
\n\tthe prayer that the impugned orders at Annexures-A, B & C passed
\n\tby the authorities may be quashed and set aside and the licence of
\n\tthe petitioner may be permitted to be operated on the grounds stated
\n\tin detail in the memo of petition.\n<\/p>\n
It
\n\tis contended that the impugned orders passed by the authorities are
\n\tarbitrary and suffers from the vice of malafide. It is also
\n\tcontended that the respondent authorities have committed an error in
\n\tcancelling the saw mill licence on the basis of inadmissible
\n\tevidence. It is contended that it ought to have been considered that
\n\tthe petitioner has been carrying on business for about 15 years and,
\n\ttherefore, the impugned orders are arbitrary and illegal. It is also
\n\tcontended that the employees of the petitioner, who are caught, were
\n\tthreatened and their statements are recorded under pressure and
\n\tduress, which has not been appreciated.\n<\/p>\n
Learned
\n\tcounsel, Mr.Kharadi for the petitioner referred to the impugned
\n\torders at Annexures-A, B & C and submitted that as discussed in
\n\tthe impugned orders, what has been alleged is that the owner of the
\n\tTempo had brought woods from M.P., for which, the petitioner, who is
\n\tthe owner of the  saw mill, is not attributed with any role. He
\n\tagain referred to the orders and submitted that the copies of the
\n\tpanchnama have not been given, which has resulted into denial of
\n\tfair opportunity and, therefore, the matter may be remanded. In
\n\tsupport of his submission, learned counsel, Mr.Kharadi referred to
\n\tand relied upon the judgment of the Hon’ble Apex Court reported in
\n\t(2005) 12 SCC 282 in case of Shankarlal V\/s State of
\n\tMaharashtra & Ors. and submitted that as observed in this
\n\tjudgment, the matter was remanded for deciding afresh. He,
\n\ttherefore, submitted that same course may be adopted. He referred to
\n\tthe orders as well as other papers and submitted that even if it is
\n\taccepted that wood cutting has taken place at the saw mill, he is
\n\tnot attributed with other role of bringing woods from M.P.
\n\tTherefore, considering the provisions of law, the licence may be
\n\trenewed as it would affect his livelihood.\n<\/p>\n
Learned
\n\tcounsel, Mr.Kharadi also produced on record the xerox copy of the
\n\tlicence, which has not been produced with the petition though
\n\trenewal thereof has been sought. Referring to the copy of the
\n\tlicence, he submitted that the authority has made a reference to
\n\tClause 7(a) of the conditions of the licence, which is not to be
\n\tfound in the licence of the petitioner. He also again emphasized
\n\tthat no opportunity has been given to cross-examine the witnesses
\n\tand the panchnama has also not been prepared in the presence of the
\n\tindependent witnesses. He submitted that when the woods are stated
\n\tto have been brought from M.P., no statement is recorded from M.P.
\n\tand they are not permitted to be cross-examined and, therefore, the
\n\topportunity has been denied and the impugned orders are passed in
\n\tviolation of rules of natural justice. He further submitted that
\n\toffence under Section 26(1)(f) of the Indian Forest Act registered
\n\tagainst the Tempo owner is not attributed to the petitioner. He,
\n\ttherefore, submitted that the present petition may be allowed.\n<\/p>\n
Learned
\n\tA.G.P., Mr.Patel referred to the impugned orders and submitted that
\n\tthree authorities have passed the orders giving concurrent findings
\n\twith regard to illegal cutting of the woods, which have been brought
\n\tfrom the State of M.P. He referred to the papers and submitted that
\n\tas per conditions of the licence, before such cutting could take
\n\tplace in the saw mill, necessary documents are required to be
\n\tproduced and verified, which is not done. He submitted that as can
\n\tbe seen from the statements recorded, earlier there was a talk with
\n\tthe petitioner and, thereafter, the woods have been brought to the
\n\tsaw mill for the purpose of cutting suggesting involvement of the
\n\tpetitioner in the offence. He submitted that the submission with
\n\tregard to the panchnama or the opportunity also may not be accepted
\n\tas the panchnama has been drawn in the presence of the petitioner
\n\tand it has never been demanded though the petitioner has been
\n\trepresented by the lawyer before the authorities. He also submitted
\n\tthat the woods have been brought from the M.P. for the purpose of
\n\tcutting to the saw mill of the petitioner and when they have been
\n\tcaught red handed, such contentions have been made but the
\n\tstatements of the witnesses including the owner of the Tempo and
\n\tothers clearly suggest about the involvement of the petitioner, who
\n\tis owner of the saw mill. He submitted that it cannot be suggested
\n\tthat he cannot be attributed with any further role in bringing these
\n\twoods when to his knowledge, the woods have been brought from M.P.
\n\tfor the purpose of cutting to his saw mill. He also pointedly
\n\treferred to the order passed in Appeal by the Conservator of
\n\tForests, Vadodara as well as the order passed by the Deputy
\n\tSecretary in Revision. He submitted that the present petition may
\n\tnot be entertained as the offences under the Forest Act are required
\n\tto be dealt with seriously without any sympathy.\n<\/p>\n
In
\n\tview of the rival submissions, it is required to be considered
\n\twhether the present petition can be entertained or not.\n<\/p>\n
Though
\n\tthe submissions have been made by the learned counsel, Mr.Kharadi
\n\traising the contention about the denial of opportunity and the
\n\tviolation of rules of natural justice, as it is reflected from the
\n\timpugned orders, it cannot be said that he has not been given any
\n\topportunity, particularly when the petitioner has been represented
\n\tby the lawyer before the authorities. The submission that the copy
\n\tof the panchnama has not been given and it could have been drawn in
\n\tthe presence of independent statements is also misconceived as the
\n\tsame contention could have been raised before the authorities below
\n\tand in fact, he has been represented by the lawyer. There are
\n\tstatements, which have been recorded, which clearly suggest his
\n\tinvolvement, which has also been discussed with regard to
\n\tconversation of mobile phone between the petitioner and the owner of
\n\tthe Tempo.\n<\/p>\n
Further,
\n\tthe submission with regard to the fact that he cannot be attributed
\n\twith any other involvement as the woods have been brought from the
\n\tM.P. as stated by the owner of the Tempo and, therefore, he cannot
\n\tbe said to be involved is also misconceived. It is required to be
\n\tmentioned that as rightly submitted that woods have been brought
\n\tfrom M.P. by the Tempo owner as stated in his statement that to the
\n\tknowledge of the petitioner, he had brought for the purpose of
\n\tcutting, which clearly suggests about his involvement. Further, it
\n\twas incumbent upon him when he has been running his business since
\n\t15 years that before woods would be permitted to be cut, necessary
\n\tdocuments or papers are required to be verified to confirm that they
\n\tare not illegal. Therefore, such contentions, which have been raised
\n\tas an afterthought, cannot be readily accepted in light of the
\n\tdiscussion made.\n<\/p>\n
It
\n\tis also required to be mentioned that Section 26 of the Forest Act
\n\tprovides with regard to the prohibited activity and what has been
\n\trequired to be considered is whether the conditions of the licence
\n\thave been violated or not though licence, which has been produced,
\n\tdoes not contain Clause 7(a). Clause 7 clearly provides that if any
\n\twooden log, which has been brought illegal or transported illegally,
\n\twould be cut without verification of necessary documents, it would
\n\tbe considered as property of the Government as envisaged under
\n\tSection 69 of the Indian Forest Act.\n<\/p>\n
The
\n\tRules of the Bombay Forest Rules read with Manual are also required
\n\tto be considered in the facts of the present case. Rule 88 provides
\n\tfor Prohibiting conversion of timber within a mile of forests. Rule
\n\t95 provides for mode of application for permission to cut and remove
\n\ttrees or timber. Rule 98 clearly provides for cutting etc. to be
\n\tdone after marking. There is procedure with regard to transit of the
\n\tforest produce with necessary document. Chapter 5 refers to the
\n\tcutting of trees, cultivation, etc. in protected forests.\n<\/p>\n
As
\n\tstated above, the woods have been brought from M.P., which have been
\n\tcut in the saw mill of the petitioner without verification of
\n\tnecessary documents. Therefore, the submissions, which have been
\n\tmade cannot be accepted in light of the aforesaid discussions,
\n\tparticularly when these contentions have also been discussed in the
\n\timpugned order of the Conservator of Forest while dismissing the
\n\tAppeal.\n<\/p>\n
Reliance
\n\tplaced by the learned counsel, Mr.Kharadi on the judgment of the
\n\tHon’ble Apex Court reported in case of Shankarlal
\n\t(supra) to support his submission that the matter may be remanded
\n\talso cannot be accepted as the facts were different. In that
\n\tcase, after show cause notice, the order of confiscation was passed,
\n\twhich was challenged and, therefore, the matte was remanded. In the
\n\tfacts of the present case, it is evident that the petitioner has
\n\tbeen given sufficient opportunity and he has been represented by the
\n\tlawyer and all the authorities
\n\thave after giving opportunity of hearing passed the impugned orders,
\n\twhich does not call for any interference by this Court.\n<\/p>\n
\tIt
\n\tis well accepted that such offences under the Forest Act are
\n\trequired to be considered in proper perspective without any
\n\tsympathy, which may otherwise have an adverse effect on the climate
\n\tand the natural resources.\n<\/p>\n
\tIn
\n\tview of the discussions made hereinabove, the present petition
\n\tdeserves to be dismissed and stands dismissed accordingly. No costs.\n<\/p>\n
\t\t\t\t\t\t\tSd\/-\n<\/p>\n
(RAJESH
\nH.SHUKLA, J.)<\/p>\n
\/patil<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Taherbhai vs Through on 22 February, 2011 Author: Rajesh H.Shukla,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-61606","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nTaherbhai vs Through on 22 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/taherbhai-vs-through-on-22-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Taherbhai vs Through on 22 February, 2011 - 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