1 HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR . CRIMINAL WRIT PETITION NO.347 OF 2011. MURLIDHAR SHRAWAN MASURKAR VS THE STATE OF MAHARASHTRA AND OTHERS ______________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Miss. T. H. Udeshi Advocate for the petitioner. Mr. M. P. Badar Advocate for the respondent nos.1 to 3. Coram : P.V. HARDAS AND S.B. DESHMUKH,JJ. Date : 21st September 2011. 1. This is a petition under article 226 of the Constitution of India, by which the petitioner herein prays for issuance of writ of mandamus for quashing and setting aside the orders dated 20-9-2010 and 27-4-2011, which are annexed to the petition as ANNEXURE NOS.H & J respectively, and also prays that as a consequence of quashing of the aforesaid orders, the Forest Officer may be directed to release the vehicle of the petitioner namely the Tractor bearing 2 No.MH/G 428 and trolley bearing No.MH 35/6232. The petitioner further prays for issuance of writ directing the respondent nos.2 to 4 to give no objection for the release of the Tractor and trolley in favour of the petitioner. The alternate prayer is to reasonably compensate the petitioner for deprivation of his right to property guaranteed under the Constitution of India, which has been done by respondents without following due process of law on account of illegal use of the vehicle by the officers of respondent no.2. The petitioner also prays for initiating an enquiry against the respondent nos.1 to 3 for illegally using the property of the petitioner i.e. the Tractor and trolley. 2. We need not dilate on the factual aspect of the present case as it would suffice to state that the challenges made by the petitioner to the order of confiscation of vehicles before the District Judge in appeal and before this Court by filing the writ petition, were rendered futile on account of the dismissal of the writ petition. The petitioner, as a last resort, requested this Court to permit the petitioner to file an application for compounding of the offence under Section 68 of the Indian Forest Act. This Court, accordingly, in its judgment rendered in Criminal Writ Petition No.108 of 2005 3 dated 12-4-2010, permitted the petitioner to submit an application for compounding of the offence, and directed the authority to pass the orders in accordance with law, if the application is submitted by the petitioner. 3. Consequent thereto, the petitioner submitted an application on 24-4-2010 which is annexed to the petition at Annexure-D. Subsequently, the petitioner submitted an application again on 20- 9-2010 seeking composition of the offence and requesting that the vehicle i.e. the Tractor and Trolley be returned back to the petitioner. The fervent plea of the petitioner for composition of the offence and return of the vehicle was repelled by the respondents by the two orders which are impugned in the present petition. 4. Learned Counsel for the petitioner, while arguing on behalf of the petitioner, has placed reliance on the Judgment of the Supreme Court in the case of K. P. Yousuff v. State of Kerala, reported in (2001) 9 Supreme Court Cases 721 and the Judgment of the Supreme Court in the case of Dinesh Kumar Kartike Vs. State of M.P. And others, reported in (2000)1 Supreme Court Cases 323. In the Judgment of K.P. Yousuff V. State of Kerala (supra), the Supreme Court had directed the compounding of the offences under 4 Section 68 of the Indian Forest Act, as the Supreme Court found that by interim order, the custody of the vehicle had been restored to the appellant before it and the vehicle was in possession of the appellant therein for 11 years after passing of the said order and since the depreciated value of the vehicle was very little, the Supreme Court directed the compounding of the offence by directing the appellant therein to make the payment of Rs.10,000/- as compounding fee. In the judgment in Dinesh Kumar Kartike (supra), the Supreme Court, by referring to section 9 of the M.P. Van Upaj (Vyapar Viniyaman) Adhiniyam 1969, found that the Forest Officer concerned had not focused its attention on the enabling provision of Section 19(1)(b) of the Act, which was to the effect that when any property, other than the specified forest produce, has been seized as liable to confiscation, to release the same on payment of the value thereof as estimated by such officer. The Supreme Court, therefore, directed the Forest Officer concerned to consider the question of release of the truck already confiscated under Section 19(1)(b) of the Act, and to pass appropriate orders in the facts and circumstances of the case. In the light of the facts of the aforesaid Judgment to which we have adverted to above, according to us, 5 the ratio laid down in the aforesaid Judgments would not be applicable to the facts of the present case. 5. In the present case, the petitioner has submitted an application for compounding of the offence and had requested that the vehicle namely Tractor and Trolley be released to the petitioner. It appears that the respondent authorities after confiscation proceedings had mis-utilized the said vehicle and as a consequence thereof, the aforesaid vehicle came to be seized by the concerned police station. It also appears that the erring officers had been proceeded departmentally on account of misconduct committed by them. On account of the finality which the confiscation proceeding had attained on account of the dismissal of the writ petition in this Court, the property namely the Tractor and Trolley now vests with the Government. The respondents in their reply to the application for composition of the offence and the release of the vehicles to the petitioner, have also stated this to be one of the grounds. Mr. M. P. Badar, learned Counsel for the respondents, has urged before us that the petitioner has no legal enforceable right to direct the respondents to compound the offence. Mr. Badar, learned Counsel for the respondents, contends that the property now vests with the Government and 6 in the light of that, the respondents had declined to compound the offence and release the vehicles to the petitioner. 6. We have carefully considered the submissions advanced before us by the learned Counsel for the parties. The request for composition of the offence was made for the first time when this Court had expressed disinclination to interfere in the confiscation proceedings while the Court was deciding the Criminal Writ Petition No.108 of 2005 by its judgment dated 12-4-2010. As a last ditch effort, a request was made to the Court to permit the petitioner to submit an application for compounding of the offence. This Court had permitted the petitioner to submit an application and had accordingly, directed the respondents to consider the application in accordance with law. Nearly, 10 years had passed since the order of confiscation which was passed on 2-11-2000. The order of confiscation of the vehicles has attained the finality. The respondents by a reasoned order declined to compound the aforesaid offence. The property now vests with the Government and according to us, a writ of mandamus cannot be issued to the respondents to compound the offence and release property i.e. Tractor and Trolly to the petitioner. 7 7. In the light of the aforesaid facts, we are not inclined to interfere in the present writ petition. Writ Petition is sans merit and is, therefore, summarily dismissed with no order as to costs. JUDGE JUDGE |mule|