IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.06.2011 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION Nos.25107 of 2007, 19105 and 25895 of 2009 and connected miscellaneous petitions W.P.NO.25107/07 Anu Ambraile Proprietrix M/s.AA Impex Company No.7 AV Nagar, First Street Madhanandapuram, Porur Chennai 600 116. .. Petitioner vs 1.The District Collector Tiruvallur. 2.The District Forest Officer Chengalpattu Forest Division Kancheepuram. .. Respondents W.P.NO.19105/09 Anu Ambraile Proprietrix M/s.AA Impex Company Sainath Apartments, Natesa Nagar, Virugambakkam, Chennai-92 .. Petitioner vs 1.The District Forest Officer Chengalpattu Forest Division Kancheepuram. 2.The District Forest Officer Thiruvallur Division Thiruvallur. ...Respondents https://hcservices.ecourts.gov.in/hcservices/ W.P.NO.25895/09: The Principal Chief Conservator of Forests, Panagal Maligai, Saidapet, Chennai 600 015. .. Petitioner vs. 1.Anu Ambraile Proprietrix M/s.AA Impex Company Sainath Apartments, Natesa Nagar, Virugambakkam, Chennai-92. 2.The Additional District Judge Fast Track Court No.III Thiruvallur. ...Respondents Writ Petitions filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, Mandamus and Certiorari as stated therein. For petitioner : Mr.Bharatha Chakravarthy in WP.25107/07 for M/s.Sai Bharath & Ilan For petitioner : Mr.S.M.Satish in WP.19105/09 & for R.1 in WP.25895 of 2009. For R.2 in W.P. : Mr.S.N.Kirubanandam No.25107/07, for Spl.Govt.Pleader (Forests) respondents in WP. 19105/09 & for petitioner in WP.25895/09. For R.1 in WP.25107 : Mr.K.Balasubramanian of 2007 Spl.Govt.Pleader COMMON ORDER W.P.No.25107 of 2007 is filed by the petitioner challenging the order of the first respondent/appellate authority, the District Collector, Tiruvallur, dated 29.1.2007, holding that a part of the order of District Forest Officer dated 16.3.2004, is not valid. https://hcservices.ecourts.gov.in/hcservices/ That is to the extent of cancellation of registration mark by the District Forest Officer as the same was not confirmed by the District Collector as per the Tamil Nadu Timber Transit Rules, 1968. However, as far as the claim of the petitioner to decide the same on merit is concerned, the same was rejected on the ground that cancellation of licence is one of the grounds for confiscation of red sanders, against which appeal has been filed before the District Court and therefore, the matter is sub judice. 2. The District Court, in Criminal Appeal No.36 of 2007 filed by the petitioner in W.P.No.19105 of 2009, who is also the petitioner in W.P.No.25107of 2007, passed the judgment on 4.8.2009 holding that the red sanders seized were covered under the valid licence possessed by the petitioner and the seizure was without notice and cancellation of petitioner’s licence by the District Forest Officer is not correct and that the petitioner did not indulge in any illegal exports. The said W.P.No.19105 of 2009 has been filed by the petitioner for direction against the respondents to return to the petitioner the red sanders wood musical instrument parts weighing about 7069 kgs. lying in the hands of the District Forest Officer in compliance of the judgment of Additional District Judge, Fast Track Court No.III, Tiruvallur dated 4.8.2009 in C.A.No.36 of 2007. 3. The Forest Department viz., the Principal Chief Conservator of Forests filed W.P.No.25895 of 2009, to set aside the judgment of the Additional District Judge, Fast Track Court No.III, Tiruvallur in C.A.No.36 of 2007 dated 4.8.2009. 4. The petitioner in W.P.No.25107 of 2007 and W.P.No.19105 of 2009, who is the first respondent in W.P.No.25895 of 2009, is a licensed merchant of red sanders wood and she is carrying on the business in the name and style, M/s.AA Impex Company, having licence and registration of property mark and stock verification certificate issued by the District Forest Officer. In addition to that, the Principal Chief Conservator of Forests issued a certificate of origin of procurement and the Government of Tamil Nadu issued bona fide certificate for the stocks of musical instrument parts made of red sanders wood and stocks were periodically inspected by the forest officials. (a) On the allegations made by the Forest Department that the petitioner had not accounted for three exports, the second respondent issued an order on 26.9.2003, cancelling the possession licence, against which the petitioner filed W.P.No.27704 of 2003 and this Court, by order dated 6.10.2003, remitted the matter to the District Forest Officer, with direction to give an opportunity to the petitioner and pass orders. (b) Thereafter, the petitioner was arrested and remanded to custody and the stocks of musical instrument parts were seized and a show-cause notice dated 24.11.2003 was issued, as to why possession https://hcservices.ecourts.gov.in/hcservices/ of licence should not be cancelled. The petitioner gave explanation to the show-cause notice with all documents, however, the second respondent passed the order on 23.2.2004, cancelling the possession licence and registration of property mark. (c) In the said order, the District Forest Officer has stated that the petitioner could file appeal before the District Judge, Chengalpattu, while actually the appellate authority is the District Collector. Thereafter, the District Forest Officer has issued an erratum on 14.4.2004, stating that appeal would lie to the first respondent. (d) It was aggrieved by the said order of the second respondent dated 22.3.2004, the petitioner filed appeal before the first respondent on 30.5.2004. The appeal was not taken on file and therefore, the petitioner had to approach this Court by filing W.P.No.24930 of 2005 and this Court, by order dated 4.8.2005, directed the first respondent to dispose of the appeal on merit and thereafter, the first respondent passed the order on 19.10.2005, stating that the petitioner has to prefer an appeal before the District and Sessions Court. (e) Again, the petitioner approached this Court by filing W.P.No.1411 of 2006 and this Court, by order dated 24.1.2006, while allowing the writ petition, quashed the order of first respondent dated 19.10.2005 and directed the first respondent to pass orders on merit. Thereafter, the impugned order was passed on 29.1.2007, by the first respondent, after the contempt application was filed. (f) In the meantime, the second respondent, who had seized the stocks was keeping possession of the same and the petitioner filed W.P.No.23865 of 2005 on 25.7.2005, for direction against the District Forest Officer to return the red sanders wood seized on 6.10.2003, from the godown of the petitioner at Puzhal. However, when the matter came up for admission, the Government Advocate took notice on 2.8.2005 and in spite of the same, the District Forest Officer hurriedly passed the order of confiscation and ante-dated the same as 22.7.2005 and served on the petitioner on 10.8.2005. The writ petition came to be closed permitting the petitioner to file appeal before the criminal court against the confiscation order. Accordingly, against the order of District Forest Officer of confiscation dated 22.7.2005, the petitioner filed appeal before the District and Sessions Judge, Chengalpattu in C.A.No.145 of 2005. (g) As stated above, District Collector/first respondent, as an appellate authority passed the order on 29.1.2007, which is challenged in W.P.No.25107 of 2007, partly allowing the appeal holding that the cancellation of registration of property mark by the District Forest Officer is not correct since the same was not confirmed by the District Collector as per the Tamil Nadu Timber Transit Rules, 1968 and as far as confiscation of goods is concerned, https://hcservices.ecourts.gov.in/hcservices/ the same was seized of by the Sessions Court and hence, no order was passed. (h) The impugned order of the District Collector was challenged in W.P.No.25107 of 2007, insofar as it relates to the portion which was allowed partly in the appeal filed by the petitioner, the same has become final and therefore, the portion of the order of the first respondent/District Collector holding that cancellation of registration of property mark by the District Forest Officer as valid is under challenge. Since the confiscation order has been passed in the meantime by the District Forest Officer, against which criminal appeal has been filed, it is not necessary to pass further orders in W.P.No.25107 of 2007. (i) In the criminal appeal filed by the petitioner which was originally numbered as C.A.No.145 of 2005 on the file of District and Sessions Court, Chengalpattu and subsequently transferred to the file of Fast Track Court No.III, Tiruvallur and renumbered as C.A.No.36 of 2007, the Fast Track Court passed the final judgment on 4.8.2009 in the appeal filed by the petitioner against the order of confiscation passed by the District Forest Officer dated 22.7.2005 confiscating 7069 kgs. of red sanders wood musical instrument parts. Finding that the confiscation was not effected in accordance with the provisions of the Tamil Nadu Forest Act, by giving prior notice, the criminal appeal was allowed and the relevant portion of the judgment is as follows: " 19. In view of the aforesaid discussion, the points raised in the appeal are answered as follows: 1.The red sanders seized were covered under valid licence possessed by the appellant. The red sanders were seized without proper notice to the appellant. 2.The cancellation of the appellant's possession licence by the respondent/District Forest Officer is not correct and there is no valid reason for cancellation of the licence. 3.The appellant has not indulged in illegal exports. The allegaion that the appellant has illegally exported musical parts on the basis of four shipping bills is factually incorrect and legally untenable. 4.In the result the appeal is allowed setting aside th order of confiscation dt.22.7.2005 of the respondent and consequently the respondent is directed to release the goods to the appellant and restore the licence to hole the released stock." Therefore, W.P.No.19105 of 2009 has been filed by the petitioner for direction against the respondents to return the red sanders wood musical instrument parts as per the judgment of Fast Track Court No.III, Tiruvallur passed in C.A.No.36 of 207 dated 4.8.2009. https://hcservices.ecourts.gov.in/hcservices/ (j) The Principal Chief Conservator of Forest who was admittedly not a party before the Fast Track Court in C.A.No.36 of 2007, challenged the judgment in C.A.No.36 of 2007 by filing W.P.No.25895 of 2009 on the ground that the petitioner in W.P.No.19105 of 2009 has deliberately transported red sanders from her godown to sea port without proper Form No.6 permit and intimation to the District Forest Officer in respect of 14 consignments, which is prohibited by rule 9 of Tamil Nadu Timber Transit Rules, 1968, that the account shown by the petitioner in W.P.No.19105 of 2009 does not show that the stocks relating to some other shipping bills were taken out and brought into the godown, that three exports done through sea cargo were not accounted for in the account submitted by the said writ petitioner to the department, that as per section 41 of Tamil Nadu Forest Act,1882 when there is a reason to believe that a forest offence has been committed in respect of any timber, such timber may be seized by the Forest Officer, which requires no notice, that while proceeding for confiscation under section 49A and B of the Act, notice was given, that as per rule 3 of the Tamil Nadu Maintenance of Account in respect of Scheduled Timber for Industrial or Commercial Purposes Rules, 1988, the quantity of more than 0.5 cubic metre in respect of any scheduled timber must contain the Government mark or property mark affixed under the Tamil Nadu Timber Transit Rules and the seized timbers did not bear such valid marks and that the transport must be done under the cover of Form-6 permit issued by the District Forest Officer with a condition that the consignment should be loaded in the presence of the concerned forest subordinates and the timber should be affixed with property mark. It is also stated by the Chief Conservator of Forests that the Fast Track Court has not appreciated the evidence and material documents and the writ petitioner in W.P.No.19105 of 2009 has grossly violated the conditions of possession of licence, that an error has been committed as if no notice was given before, which is not necessary, that the Court cannot decide about the cancellation of licence which is different from the context of appeal preferred under section 49D of the Act and that the Court ought not to have released the subject matter, apart from raising many other grounds. 5. The writ petitioner in W.P.No.19105 of 2009, who is the first respondent in W.P.No.25895 of 2009 has filed counter affidavit, wherein the maintainability of the writ petition has been raised on the ground that the Principal Chief Conservator of Forests is not a party to the appeal and he cannot file the writ petition challenging the judgment of the Fast Track Court. It is stated that the Principal Chief Conservator of Forests had never involved in the proceedings either when seizure was made or confiscation order was passed. It is also stated that the judgment passed by the judicial forum, which is a statutory appellate authority, has become final and aggrieved by such judgment of criminal court, no writ petition will lie. It is also stated that the learned Additional District Judge found that the confiscation order passed was without any basis and https://hcservices.ecourts.gov.in/hcservices/ directed for the return of stock. It is stated that even in the appeal filed in respect of cancellation of possession of licence, the District Collector held that in respect of cancellation of licence and confiscation, it is for the Court to decide, while holding that the cancellation of possession licence by the District Forest Officer is unsustainable in law. That apart, it is stated that the writ petitioner in W.P.No.19105 of 2009 obtained possession licence for holding stocks of red sanders wood musical instrument parts and not for red sanders logs and therefore, the allegation of any offence on the face of it, is not correct. It is stated that the petitioner only transported wood musical instrument parts under necessary permit issued by the District Forest Officer in Form No.6 and the possession licence was reviewed from time to time after periodical inspection. It is also stated that even otherwise, the term, ‘permit’ would attract the timber and musical instrument parts would not come under the term, ‘timber’. It is denied that the Additional District and Sessions Judge, Fast Track Court has no jurisdiction to release the seized property and when once confiscation order was held to be invalid, the release of stocks would follow. 6. As against the order of confiscation made under section 49A(i) of the Tamil Nadu Forest Act,1882 appeal lies under section 49D of the Act to the Sessions Judge and section 49D(2) makes the order of Sessions Judge final and the same cannot be questioned in any court of law. Section 49D is as follows: " Sec.49D. APPEAL:-(1) Any person aggrieved by any order passed under Section 49-A or section 49-C may, within thirty days from the date of communication to him of such order, appeal to the Sessions Judge having jurisdiction over the area in which the property, to which the order relates, has been seized and the Sessions Judge shall, after giving an opportunity of being heard to the appellant and the authorised officer or the officer specially empowered under section 49-C, as the case may be, pass such order as he may think fit, confirming, modifying or annulling the order appealed against. (2) An order of the Sessions Judge under sub-section (1) shall be final and shall not be questioned in any court of law." 7. As stated above, admittedly, in C.A.No.36 of 2007, the respondent was the District Forest Officer and the present writ petitioner in W.P.No.25895 of 2009, viz., the Principal Chief Conservator of Forest was not a party in the criminal appeal. 8. Under similar circumstances, while deciding about the locus standi, under the TamilNadu Forest (Amendment) Act, 1992, when a show-cause notice was issued under section 49A for confiscation of https://hcservices.ecourts.gov.in/hcservices/ vehicle, on the appeal filed by the aggrieved person, the confiscation was set aside, against which writ petition was filed by the District Forest Officer. By relying upon the earlier judgment in The Regional Transport Authoirty, Namakkal Region vs. The State Transport Appellate Tribunal, Madras and 3 others [1994 WLR 316], it was held in The District Forest Officer, Attur, Salem District and another vs. A.V.Ravichandran and another [1996 (2) CTC 34] that for invoking extraordinary jurisdiction under Article 226 of the Constitution of India, a person should show to the Court that his personal right has been infringed. In respect of locus standi, the Court has held as follows: " 3.At the time of hearing, the question of maintainability of the writ petition in this Court, was raised. Learned counsel for the petitioners Mr.Kannappa Rajendran was also directed to go through the judgment of this Court in The Regional Transport Authority, Namakkal Regiion vs. The State Transport Appellate Tribunal, Madras and 3 others (1994 Writ Law Reporter 316). On going through the same, learned counsel for the petitioners today submitted that the writ petition, at the instance of the first petitioner, namely, the District Forest Officer, is not maintainable. However, he contended that the jurisdiction of this Court can be invoked by the second petitioner, namely, the Forest Ranger Officer, who seized the vehicle and at whose instance the recoveries were made and confiscation proceedings were furthr followed. 4. In my opinion, the judgment of this Court AR.Lakshmanan,J. Reported in the Regional Transport Authority, Namakkal Region vs. The State Transport Appellate Tribunal, Madras and 3 others (1994 Writ L.R.316) squarely applies to the facts and circumstances of this case. In that case, though the writ petitions were initially filed by the Regional Transport Authority as civil revision petitions under Article 227 of the Constitution of India challenging the order of the State Transport Appellate Tribunal, allowing the appelas preferred against the order of the petitioner therein and granting reliefs to the respective second respondent, they were posted on the question of maintainability before The Hon'ble Mr.Justice Raju, who passed order permitting the petitioner to cover the civil revision petitions as writ petitions. On the question of maintainability of the writ petitions being filed at the instance of the Regional Transport Authority, this Court held that the Regional Transport Authority is exercising the power as a quasi judicial authority and he is an authority under the Act to decide whether an applicant is eligible to get permit and if there are more number of applications for permit, he has https://hcservices.ecourts.gov.in/hcservices/ to decide, which of the applicants is more suitable for the grant of permit and in doing so, he is deciding the lis between the rival contenders as an authority under the Act. It is further held that if this order is modified or set aside by the appellate authority on an appeal filed by the affected party, the appellate order can be agitated further by only a person whose interest and rights have been affected by the order of the appellate authority, but not by the Regional Transport Authority. This apart, to invoke the extraordinary jurisdiction under Article 226 of the Constitution of India, the person invoking such jurisdiction should show to the Court that his personal right has been infringed or affected. 5. In the present case, it could not be said that the personal rights of the petitioners have been infringed by the order of the appellate authority, namely, the Sessions Court, Salem, and therefore, a writ can be maintianed at their instance. This apart, both the petitioners have not been denied with or deprived of any legal right. They have not sustained any injuty to any of their legally protected interests. In fact, the impugned order does not operate as a decision against them, much less does it wrongfully affect their title to something. They have not been subjected to a legal wrong. They have suffered no legal grievance. As observed by the Supreme Court, they have no legal peg for justiciable claim to hand on. Therefore, I am of the opinion that the petitioners are not persons aggrieved and they have no locus standi to challenge the order of the Sessions Court setting aside the confiscation order and directing the hand over the vehicle to the first respondent herein. In view of the order setting aside the confiscation order, the first respondent would certainly be entitled to have custody of the vehicle. Accordingly, the writ petition is dismissed." 9. The writ petitioner in W.P.No.25895 of 2009, being the Principal Chief Conservator of Forest has not shown infringement or any personal interest. In any event, a reference to the judgment of the Additional Fast Track Court No.III, Tiruvallur in C.A.No.36 of 2007 shows that three points were raised against the confiscation for consideration which are as follows: "1. Whether the red sanders seized were the Red Sanders covered under valid possession licence issued by the District Forest Officer? 2.Whether the cancellation of the appellant's possession Licence by the District Forest Officer on 26.9.2003 is correct? https://hcservices.ecourts.gov.in/hcservices/ 3.Whether the appellant had indulged in illegal export of Red Sanders musical instruments?" The Fast Track Court has referred to the licence issued by the District Forest Officer for possessing 5652 kgs. of red sanders wood used for making musical instrument parts, and found that the licence contains a clause that the licensee has to maintain proper stock accounts and the red sanders shall not be exported without the permission of the Principal Chief Conservator of Forest. There is also a finding which is not in dispute that the possession licence and property mark registration were renewed periodically from 1999 to 2004 and there is a specific finding that the Secretary to Government, by proceedings dated 13.6.2003, recommended to the Export Commissioner, Government of India to issue export licence in favour of the writ petitioner in W.P.No.19105 of 2009 by certifying that the stocks found in the premises are genuine and procured legally. The Court has found that the dispute was relating to the four shipping bills, as under: S.No. Shipping Bill No. Date Red Sanders Sets 1 1435572 17.5.2002 200 2 1435275 16.5.2002 200 3 1447730 14.6.2002 130 4 1447161 13.6.2002 130 10. The reason for confiscation was that 660 red sanders did not form part of shipping bills, and it was the specific case of the licensee, who is the petitioner in W.P.No.19105 of 2009 that the said stocks were not exported as the shipping bills were cancelled and no export was made through the said shipping bills. The Court extracted the certificate for cancellation of shipping bills issued by the Assistant Commissioner of Customs dated 6.10.2003 which is in the following terms: "This is to certify that the shipment in respect of AA Impex Company 45, M.H.Road, Moolakadai, Chennai 600 060 pertaining to shipping bill Nos.1435572 dated 17.5.2002, No.1447161 dated 13.6.2002, 1435275 dated 16.5.2002 and 1447730 dated 14.6.2002 has not been effect due to cancellation of the above said shipping bills." Therefore, there was no shipment based on the said shipping bills and in such circumstances, there was a clear finding that there was no shipment of materials which were subject matter of the said bills and that the conclusion arrived at by the authority while confiscating the stocks was a patent error. The finding by the learned Judge cannot be said to be either perverse or illegal. There is also a clear finding that the allegation of Forest Range Officer that the licensee had in possession of more than the licensed quantity of red https://hcservices.ecourts.gov.in/hcservices/ sanders is not correct and therefore, that cannot be a ground under section 41 of the Tamil Nadu Forest Act to effect seizure. In the absence of any material to show that the licensee had in possession of red sanders in excess to the licensed quantity, the seizure has become invalid. It was therefore held that the seizure and confiscation are not valid under section 49A of the Tamil Nadu Forest Act and before seizure, the Forest Ranger did not follow the procedure under section 41 of the Tamil Nadu Forest Act which is as follows: "Sec.41. SEIZURE OF PROPERTY LIABLE TO CONFISCATION. (1)When there is reason to believe that a forest offence has been committed in respect of any timber or forest produce, such timber or produce, together with all tools, ropes, chains, boats, vehicles, and cattle