IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7589 of 2002 SHREE SHANTI SAW MILL, having its place of business at, P.O. and P.S. Ghorasahan, District East Champaran, through its Proprietor Braj Kishore Prasad Jaiswal, S/o Sri Madan Lal--------petitioner Versus 1.THE STATE OF BIHAR through the Commissioner cum Secretary, Department of Forest & Environment, Government of Bihar, Patna 2.Divisional Forest Officer, Tirhut Extension Forest Division, Muzaffarpur at Muzaffarpur 3.The Forest Range Officer, Motihari, District East Champaran----------------respondents with CWJC No.3726 of 2002 BRIJ KISHORE PD.JAISWAL son of Sri Madan Prasad, resident of village and P.S. Ghorasahan, district East Champaran (Motihari) Proprietor of Saw Mill, Dharmshala Road, Ghorasahan, East Champaran (Motihari)-------------------------------petitioner Versus 1.THE STATE OF BIHAR through the Commissioner-cum- Secretary, Department of Forest and Environment Government of Bihar, Patna 2.The Divisional Forest Officer, Tirhut Prasar Division Muzaffarpur 3.The Regional Conservator of Forest, Motihari Prasar Division, Motihari 4.Ranger, Motihari Prasar Division, Motihari 5.Forester, Motihari Prasar Division, Motihari-----------------------------respondents with CWJC No.3750 of 2002 PRAKASH CHANDRA PRASAD son of late Devi Prasad Resident of village Gohrasahan, P.S.Gohrasahan, District East Champaran (Motihari), Proprietor of M/s Pandey Saw Mill--------------------petitioner Versus 1.THE STATE OF BIHAR through the Commissioner-cum- Secretary, Department of Forest and Environment Government of Bihar, Patna 2.The Divisional Forest Officer, Tirhut Prasar Division Muzaffarpur 3.The Regional Conservator of Forest, Motihari Prasar Division, Motihari 4.Ranger, Motihari Prasar Division, Motihari 5.Forester, Motihari Prasar Division, Motihari-----------------------------respondents ----------- For the petitioners :Mr.Ram Balak Mahto,Sr.Advocate Mr.Alok K.Agrawal,Mr.Ajay 2 For the State :Mr.Shashi Bhushan Kr.,S.C.16 Mr.Kumar Pankaj,A.C. to S.C.16 ----- 9. 30.11.2009 Heard learned counsel for the petitioners and the State. The petitioners are aggrieved by the impugned seizure of the truck including Shisham wood as well as cancellation of the licence. The petitioners state that there is no restriction on the movement of Shisham wood from the State of Bihar to outside. In support of his contention learned counsel has relied upon a decision of this Court in the case of M/s. Bhartia & Sons vs. State of Bihar & ors., reported in 2001(4) PLJR 411. He submits that thus the impugned seizure and confiscation is in teeth of the judgment of this Court which still holds good. This Court in the case of M/s. Bhartia & Sons was also considering transportation of Sisam wood outside the State in absence of any Legislative sanction. By making reference to Indian Forest Act as well as the Bihar Timber & Other Forest Produce (Regulation of Transit) Rules, 1973 this Court observed that the same speaks about the regulation of timber movement within the State of Bihar. This Court further noticed that Sisam wood has not been included as one of the 3 items under the Bihar Forest Produce (Trade) Act, 1984 and the Bihar Forest Produce (Trade) Rules framed thereunder. This Court in paragraph-11 has observed that if a consignment of timber etc. is removed from its place with the object of being carried outside the State and it is in fact carried to a place outside the State, then the prohibition of Rule 3 of the Bihar Timber & Other Forest Produce (Regulation of Transit) Rules, 1973 would not be applicable. It would be relevant to quote paragraph-12 of the aforesaid judgment which is being reproduced hereinbelow. “12. In this view of the matter, the State Government will be well advised to make comprehensive rules, regulating the movement of timber etc. both within and outside the State, in exercise of the powers under section 41 of the Indian Forest Act; or alternatively to make sisam wood also within the ambit of the Bihar Forest Produce (Trade) Act, 1984 and the Rules framed thereunder. But till such time as necessary 4 legislative measures are taken, the respondent authorities have no authority or power to prohibit movement of sisam wood outside the State. The impugned directions as contained in the letter, dated 10.7.2001 issued by the Commissioner- cum-Secretary, Department of Forest & Environment are accordingly set aside.” In the three instant cases also the woods were admittedly being carried outside the State of Bihar. The timber along with the truck were seized and confiscation started on the basis of letter dated 10th July, 2001 issued by the Commissioner-cum-Secretary, Department of Forest. The aforesaid letter on the basis of which the truck along with the timber were seized was quashed by this Court in the case of M/s. Bhartia & Sons. When the matter was taken up on 12.9.2002, this Court directed for release of the sisam wood along with the truck as the same was in the teeth of the order passed in the case of M/s. Bhartia & Sons. This Court further stayed the operation 5 of the order cancelling the saw mill licence also. Learned counsel for the State has opposed the prayer made in the writ applications and has relied upon a Division Bench decision of this Court in the case of Shankar Traders vs. The State of Bihar & ors., reported in 1997(2) PLJR 24. Learned counsel has referred to paragraphs 3, 8, 9, 12 & 16 of the aforesaid judgment. In the aforesaid case, this Court was considering import of timber from Nepal into State of Bihar. The issue involved in the aforesaid case was also whether the petitioner would be liable to pay duties under the Customs Act also or not. In the aforesaid case this Court observed in paragraph-16 that if the power to regulate the transit of forest- produce alleged by foreign origin, within or through the territory of the State of Bihar is denied to the authorities, it would facilitate illicit trade of forest-produce and help the unscrupulous traders, setting the regulatory provisions at naught. This Court way back in 18.1.2001 had advised the State Government to make comprehensive rules relating to the movement of timber etc. both within or through 6 the State in exercise of power under Section 41 of the Indian Forest Act. It had further observed that alternatively the authorities can take sisam wood also within the ambit of Bihar Forest Produce (Trade) Act, 1984 and the Rules framed thereunder. I am informed by learned counsel for the petitioners that despite such observation of the Court no exercise in the aforesaid direction has been undertaken. I further find that the case law referred to by learned counsel for the State would not be applicable in the facts and circumstances of the case. Now the next issue would be whether the confiscation of the seized truck and the goods is in accordance with law or whether the petitioners should be reverted to alternative remedy under the law. Counsel for the State has submitted that the petitioners can be resorted to the remedy of appeal or revision. However, learned counsel for the petitioners has stated that if the impugned proceeding is without any authority of law then in such circumstances the petitioners may not be relegated to seek alternative remedy. In support of his 7 contention learned counsel has relied upon a decision rendered in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & ors., reported in 1998(8) SCC 1. This Court is satisfied that the impugned orders confiscating and seizing the truck and timbers are in the teeth of the order passed by this Court in the case of Bhartia & Sons and as such I quash the impugned orders of confiscation in C.W.J.C.No. 3750 of 2002 and C.W.J.C.No. 7589 of 2002. As the trucks and goods have already been released so no order as to release is being passed. For the reasons stated above, the cancellation of the saw mill licence is also set aside and the writ applications are allowed. It will be still open to the Legislature and the Government to bring about necessary amendments as suggested by this Court in the case of Bhartia & Sons. (Samarendra Pratap Singh,J.) Spal/