BBI (^ % 'y^ yi^y €^f=M^J »3 3 S S •Scrf-' s 2 '•'-.sa- Oc AT Bl Road. Distnct: Siiaspu!', /'X?" <i^-" .^•'^ >'•'' <2'.'.e^\ -•"" <'ei'.a<> RESPOF^fffeNTS: \/ersus - <L '•o/ ^^^* Y" c*1-*' o- -L-. Q 'f /^^ ;!tT'^-'\.7; .^ •^v,,r, ^•^'t .^.^:w i-:g£^ ^-3. Stots Govt. of Chhotl'lsao'rh, l2[oj^213: Secretary, Ministry of Forest, Mantrataya, D.K5. 8ui!dina. Ratour. ChhoWsnnrh. i ^f ^-: ^ji; a I d '-*^ Conss.rvotc3r of Forests-cum" Prescribed Aopejiate Authority unosr ^scTiOH i i QT ms ChhottisOOfh KosihQ C'hlfOH (Viniyaman} AdhinSyam, 1984, BiiasDur Chhattisgarh. Divisiona! Forest Otiicer, Marwahi Forest Divislon. Pendra Road, Dist'ict: Bsaspur cnnaTTisaarn. '."S"' PSTiT'-T'.N !*<Mr*.EB ASTT",? 9'?Affl97 f%? TUP rT»U<T'T!!TTsM/^F 'tM"iiA .?''^L^.u:w*'ii-.:yj'ii§v-£.^.Mi^i3w^£...f£^^^?£^<..s/f .^.^s.'^•wy^^^ H.v 33Wi:% .-wr.^'^^ FOR OF ETC. TO DO •ij uuii.i...Jn*ilB! "<, h < HICTI COURT OF JUDICATURE ATBILASPUR (CHHATTISGARH) Wrlt Petition No.2593 of 2004 Saliu Timber Tradiag Coinpany - Versus - State of Chhattisgarh aad others ORDER Post for: 04^^2005— ^5F L.C. Bhadoo Judge -1-20Q5 ^'.••^J .'•••s-' HIGH COURT OF JUDICATURE AT BILASPUR, CHHATTISGAKH Writ Petitioa Np.2593 of 2004 Sahu Timber Trading Coiupany - Versus - State of Chhattisgarh euid others Present: - Mr. Sanjay K. Agrawal, Advocate; Mr. Siunesh Bajaj, Dy. Govt. Advocate: For the petitioner, For the respondents. (Passed on _^ th Januarvr, 2005) L.C. BHADOO, J. 1. By this writ petLtion lUlder Article 226/227 ofthe Constihition of India fhe petitioner has questioned the legaiitv7, proprietary aiid correctness of the order dated 7.2.2004 (Aiuiexure P-11) passed by respondent No.3- Divisional Forest OfEcer and also orcler dated 14.7.2004 (Annexure P-13) passed by respondeut No.2- Conservator of Forest ia. appeal as AppeUate Authority. 2. Brief facts leadiag to filing of this writ petition are tliat in. the yeai' 1986 fhe petitioner was permitted to set up a saw mlll laachine at Pendra. On 21.02.2003, 12.12.2003 8u 13.12.2003 the authorized Raage Officers of GoriBa & Pendras iuspected the petitioner-Saw Mill. As per the allegations, on mspection of fhe saw mill by these officers on 21.2.2003 239 pieces of Beeja slippers & 45 pieces of Page2ofll Kaiirhar slippers were found, on 13.12.2003 forty green sUppers of Maugo, Jamun, & Karhi-Katlial trees & 514 green pieces of mixed tree logs were found and the Beeja sKppers wbich were lying ia fhe petitioner Saw MU1 were found to be of Coupe-V Pidha area, the iiuiubers recorded by fhe forest department were present on these sUppers, fhe Kamhar logs were stolen froin tlie forest area & brought to fhe petitioner Mill illegaUy aiid were sawn there. On fhis Crime Nos.801/25 & 814/01 dated 31.12.200.3 were registered and on enquin7 it was fouiid that Beeza & Kamliar logs were stolen from the forest area, wheicas ofher pieces of wood i.e. Maago, Jam.un & Karbi-Kathal were broiight froni the private persons, whieh were cut inegally. After preluniaan" enquiiy, a report was subnutted to respondent No.3-Divisional Forest Officer, who in tum issued show cause notice on 31.12.2003 aad again on 15.1.2004 to the petitioner aad asked him to explam as to why license of petitioner should uot be caaceUed/ suspeuded. 3. Reply ofthe same was subiaitted by the petitioner vide Ansiexure P-4 ia which it was stated that Beeza & Kamhar logs were purchased by thern on 19.6.2002, 18.10.02, 19.12.2002 & 12.9.2001 m fhe auctioii by the Forest Department and other woods i.e. Jamun, Mango Su Karhi-kathal were brought to fh.eir saw mfll by fhe farm.ers wifh the permission of the respective Sarpaachas for the purpose of sawing. However, dissatisfied wifli the reply filed by the petitioner and based on fhe pi^liminan' enquiiy report aiid other docuinents, respondent No.3 reached to fhe conclusion that Beeza & Khamar tree logs were stolen from fhe forest area, same beiag fresh and gi-een, whereas the papers 'x ' \y Paae3ofll ^ .^-•' produced by the petitioner regardiag piu-chase were of the year 2002, other tree logs were cut without penaission aiid transported illegaUy by the private persons to the petitioner. Accordio.gly, the petitioner was held gliilty uiider Sections 8 & 9 of C.G. Kasfha Chiraii (Viainiyam) Adliiaiyam, 1984 (hereinafter shall be refenred as to 'the Adhiaiyam of 1984>) and an order was passed for suspension of license of petitioner-Saw Mill w.e.f. 01.01.2004 to 31.12.2004, fme ofRs.5,000/- uiider Section 9 of the Adhiniyam of 1984 was im.posed. Sunilarly, seized woods were also confiscated to tlie Goveminent account. Beiag aggrieved by this order the petitioner-Mill filed an appeal before the AppeUate Authority-respondent No.2, which also cam.e to be dismissed by the AppeUate Aufhority vide order-dated 14.7.2004 (Annexure P-13). 4. The petitioner's case, as bom-out froin the recorcls, is that no proper opportuaity of hearrag was given to fhe petitioner, copies of docuxuents were not served, even notice for conunission of violation of Section 8 ofthe Adhiaivam. of 1984 was iiot given and petitioner MU1 was held guflty of the same. Sumlarly, when the coBiproinise applicatiou of the petitioner (AnnexUTe P-14) was accepted by respondent No.3 then he ought not to have siispended fhe Ucense of the petitioner Mill, The order was passed without considermg the dociuiients subiaitted bv the petitioner, 5. Leamed counsel for the petitioner white argtiing raised sam.e pouits fhat no proper opportunity was given to the petitiouer, no notice for violation of Section 8 was given aad even in fhe show cause notice it was not meutioued fhat fhe petitioner MiU failed to faruish fhe retums ia tiiaes, therefore, respondent No.3 was not Page4ofll '\ f~" eutitled to hold guflty petitioner-Mill for violation of Sectiou 8 of fhe Adhia.ivam of 1984. Leamed counsel further subinits that when the coraproiiiise appUcation (Annexure P-4) fUed by petitioner was accepted, fine was im.posed then respondent No.3 was not authorized to suspend tib.e Ucense of fhe petitioner MiU and also to confiscate ftie woods taken froia fhe possession of Uie petitioner MiU. Moreover, in view of fhe fact that Beeza & Kamhai' woods were piirchased by fhe petitioner in auction by the Forest Department, docunients to that effect were fumished bv fhe petitioner.and that ofher woods were ofthe private persons which were brought to the petitioner Saw Mill under the permit issued by the concemed Sarpauchas. Learaed co'iinsel for the petitioiier reUed upon the decision of M.P. High Court ia tlie inatter of Dwarika Prasad Roy Vs. State of M.P. and others reported in 2003 (1) MPLJ 471. On fhe ofher hand, Shri Suinesh Bajaj, Deputy Goveminent Advocate argzied that on the basis of llie docuinentan' evidence, statemeut of witaesses, inspection report, seizure and Panchnama. it was folind that Beeza and Kamliar woods were fresh and green & same were stolen froin the Goveminent forest, whereas the documents prodiiced by tlie petitioner regardhig purchase were of the year 2002. He further argued that on Beeza sUppers inarking of forest department were preseat, saiue was stolen bv one Ramesh Kiunar froni fhe forest area and other woods found in. fhe petitioner-Saw MiB were iUegaIly ciit and brought bv the villagers ia violation of Section 240 of tlie C.G. Land Revenue Code, 1959 &, C.G. Adim Jaa Jation Ka Sanrakshaii Adhiuiyam, 1999 & Niyam 2000. Leanied State Page 5 of 11 f— counsel farther subinits fhat as far as the supply of copies of the dociiinents was concemed, at no poiat of time the petitioner requested for supply of copies of docuinents, therefore, it caiinot be said that the pnnciple of natural justi.ee was violated. He farther subinitted fhat siace the show cause noti.ee was served upon the petitioner, reply of fhe same was filed and they never asked for copy of any docuiuent, as such prtaciple of natural justice was not violated ia fhis case. He further subiaitted fhat as per provisions of Section 6 (5) as also provisions of Section 12 (2) of the Adhiniyam. of 1984 license of the petitioner MiU was righflv suspended, fme was iinposed and wood was confiscated. 7, Iu this connection, ifwe look iato fhe provisions ofclauses (b) Ss (c) of sub-section (5) of Section 6 ofthe Adhiniyam of 1984 which envisages that if tlie licensee failed to coniply wifh the conditions of ticense or contravenes any provisions of fhe Act or Rules Eaade fherein and if the Ucensee is not able to account for satisfactorilv ttte wood which was found in the saw niiU then wood is liable to be confiscated under Section 9. It further envisages tliat Licensiug OfS.cer after giying the Uceusee aii opportuiiity" of showiug cause caa revoke or suspend fhe license aiid forfeit fhe sum.. Section 8 envisages regarduig subiaissions of retums ia tlie prescnbed fonu by the Ucensee relating to the biisiaess of tlie saw-iuill. Section 9 envisages fhat when saw-inUl owner fails to accouiit for satisfactorilv about the wood found in the saw inill at fhe tune of uispection, saiae shall be ILable to be confiscation. Section 12 (2) envisages fhat no order ofconfiscatmg any propei-t)- shall toe inade under sub-section (1) unless fhe persons froia whom the properfa' is seized and in fhe case the owner of such Page6ofll \ :L property is known, such person is given; (a) a notice ia writiag infomiuig him of the grozinds on which it is proposed to confiscate such propei-fa', (b) aii opportiuiily of inakmg a representation ia writing wifhia such reasonable time as raay be specified in the notice agaiast the grounds for confiscation and (cj a reasouable opportuiuty of beiag heard is given in the inatter. Therefore, as per provisions of sub-section (2) of Section 12, Section 9 and claiises (t>) & (c) of sub-section (5) of Section 6 of ftie Adhiniyam of 1984 before passing the order of confiscatiou of woods aild imposing penalty the petitioner was entitled for a show cause notice, reasonable opportunity of hearing aacl representation, so as to enable the petitioner to account for satisfactorily about the pi-esence of the woods ia tlie saw rafll. 8. The Constitution Bench of fhe Hon'ble Apex Court ia fhe matter of Fazal Bhai Dhala Vs. Custodian General Evacuee Property, New DeUii and aaother reported in AIR 1961 SC 1397 while explainiag the reasonable opportuiuty held fhat whe.re law requires ihat the person concemed should be given a reasonable opportwdty 6f being Jteard before any order prejudicial to him is made and if this reasonable opportunity of being heard cannoi be given without the service of noiice, the omission to seive the nodce would be fatal; where, however, hearing can be given wi'l.hout service of notice, ii does not matler at alt and all thal has to be seen ;'s whether even thaugh no noiice ivas given a reasonable opportwuiy ofbeing heard was given". In aaother decision in fhe matter of M/s Bharat Barrel and Drum Mfg. Co. V. L.K. Bose aad others reported m AIR 1967 SC 361, fhe Court while explainiug the prmciple of natural justice held that "while Page7ofll- ;L. considering the question, court should not proceed as if there are any inflexible rules of tuitural justice of universa! applicaiion. Court has to consider in each case whether in light of facts and drazinstances of case, nature of issues involved in enquijy, nature of order passed and inferest affected thereby, a fair and reasonable opportuniiy ofbeing heard was furmshed'. 9. In the matter of K.L. Tripathi V. State Bank of India aad others reported m. AIR 1984 Supreme Court 273 the Hon'ble Apex Court held fhat: "... .prindples of na.tural justice has been violaled or • not fzas to be judged in the background of nature of charges, the nature of investigation conducted in the background of any statutory or relevant ru.les goveming such enquiries. The bastc concept is fcdr {flecfi In. actS.on ttdmlnistrative, ^fsidicial or <ructsi-/udicictl. The con.cept of .fair plav in acfxon nuist depend upon the partlculeir lis, if there be an.s between the parties, S is tnie that all the actions tuitdnst a partfi which involve penal or ddverse consevuences imist be in accordance urith the principles of natural histd.ee Jw.t whether the princlple of natural fustice would be appKca&lc to a partxcular sttuciUon or the tjuestion whether there has to be judsjed, in the liyht of fewts and circumsteinces of each particulcir case. The bdsic reoufrcment 1s thtit there must be fedr {ilcDi ln action and the dccision wiust &e arrlved at in a lust emd obfecUve fiumn.er uri.th reaard to the relevance of the nwterlals and reasons. The rules of natureil justice are fleidble awS. cannot &c put in an.y riffid forniula..' (Emphasis supplied) PageSofll v The M.P. High Court ia the case of Dwarika Prasad Roy (supra.) while dealiag with Sections 6(5) &12(2) offhe Adhmiyam of 1984 held that "in order to enable a person to defend himself properly if is necessary the nuxlerial on ihe basis of which opinion has been fonned should also be suppUed. That having not been done and when such maierial had been relied upon by the Licensing Authority without affording copy of the same to the petitioner, ihe order per se was Wegal. The Licensing Authority acted upon ihe material collecled by the Range Officer iviihoul supplying copy of t)'ie same to the petiiioner. Therefore, the petitioner ivas deprived of opportunity to defend properly. 10. In the light of above principles laid down by tiie Hon'ble Apex Court and High Coiirt of M.P. in fhe above inatters, if vve look into fhe provisions of sub-section (2) of Section 12 which envisages that 'a notice informing the gi'ounds on which the confiscation of property is proposed; an opportuniiy of making representcdion in writing within such reasonable time as may be spedfied in the notice against the grounds for confiscation and a reasonable opportunity ofbeing heard in the matter and he should ateo have the oppovtunity to account for saiisfactorily the presence ofthe wood.'T.n view ofabove provisions aad Sections 6 (5) (c) 8s 9 ofthe Adhmiyam of 1984, ifwe look mto tlie facts ofpresent case, the Raage Of&cers of GoriUa & Pendra inspected the petitioner- Saw Mill, prepared their report, sent the same to respondent No.3- Divisional Forest OfEicer fhrough the Sub Divisional OQicer (Forest) and respondent No.S-Divisional Forest Of&cer based on the preluiiuiary enquiry report, docuinents available, seizLire inem.0, Paiicluiaoia and stateiuent of wituesses passed flie Page9ofll Y inipugned order. But, it is aa admitted fact fh.at copies of these docuinents were not given to the petitioner for niakuig representation agamst the show cause noti.ee. Even the show cause notice about the non-filuig of the returus as per provisions of Section 8 was not given, only fhe notice was given regardm.j violation of Section 9, in which it was nientioned tibiat woods were found in fhe Saw Mill iu violation of Section 9 of fhe Adhinivam of 1984. Lookiag to the facts and circuiustaiices of the case, this notice camiot be considered as sufEcient coiupliaiice of provisions of sub-sectiou (2) of Section 12 aiid clauses (b) & (c) of sub- section (5) of Section 6. In fhis case, it is an. adiaitted position that fhe witnesses were exainined ia the absence of fhe petitioaer aiid on fhe basis of tliat it was held that Beeza & Kattth.ar sUppers were stolen bv one Ramesh Kuinar and saiae were brought to tlie petitioner Mfll. Even, as m.entioned in the retum of the respondents, other docuiaents (Aruiexure R-7), photographs (Annexure R-8), stateiuents of laborers (Annexure R-9) and coinparative chart (Annexure R-10) were prepared by fhe Range Officers, but even the copy of enquiiy report was not supplied to tlie petitioner. Therefore, iu order to give reasonable aad proper opportunity of replyiag the show cause notice and also of heariiig, respondent No.3 before passing fhe iinpugned order dated 7.2.2004 ought to have fumished fhe copies of aU those dociuneuts to fhe petitioner along with show cause notice and show cause notice m.ust have drafted giving deteuls of aUegations against the petitioner. It appears froru fhe record tliat no request was inade by fhe petitioner to funushiiig fhe copies of dociiinents, but lookiag to the provisions of sub-section (2) of Section 12 & clause (c) of sub-section (5) of Section 6 of Adhiaiyam of 1984 m - - ^^1- PagelOofll -\ 1.-. v order to afford reasonable opportunity of hearing to fhe petitioner aad also to eaable him to give proper & detailed reply aad defend himself properly, the necessary raaterial based on which opuiioa was fonned by the Divisional Forest Of&cer (respoadent No,3), ought to have been supplied to the petitioner, withozit which lookuag to the above provisions, it cannot be tenaed fhat proper opportunity was given to the petitioner before passiag fhe order of confiscation and suspension of license of fhe petitioner Mill, as both fhe actions i.e. coufiscation of woods and suspension of license are of serious consequences which afFects fhe busiiiess of the petitioner. Therefore, respondent No.3, before passrag tlie irapugned order, ought to have supplied fhe copies of the dociuiients, which were fhe basis of formation of opiuion. Moreover, the order was passed by respondent No.3 on fbe prflirninary enquiry conducted by fhe Range Ofiice.rs. Even ia fhe ineino of appeal the petitioner nientioned fhis fact that enqiiin' was niade in his absence aad copies of fhe docT.un.ents were not served on the petitioner. Therefore, I am of the coasidered opiaion that in. the present case wifh.out luaking comipliauce of the above provisions principles of natural justice have been violated, as such the orders uupugned are Uable to be quashed on tliis score alone. 11. During the course of fhe arguiuents it was argued tliat tlie petitioner-Mill nioved a coiuproinise appUcation (Annexure P-4). In fhe first iastauce, perusal of impiigned order reveals fhat said compromise application has not been m.ade basis for passing the im.piigned orders. Moreover, fliis compromise application said to have been moved on behalf of the petitioner-Mfll is not signed, Pagellofll 1 1. ftierefore,while passing the impugned orders this could nothave been niade basis. 12. In fhe result, the petition of fhe petitioner is allowed, the impugued orders dated 7.2.2004 Ss 14.7.2004 (Aiuiexurc P-11 & P-13) are quashed aad the matter is reinaxtded back to fhe Licensing Authorily, who shall psoceed the case afresh ia accordaace with law within a period of four nionths. Licensiug Aufhority to give a fi-esh notice to fhe petitioner Saw Mitl uicorporatiag all the atlegations agauist fhe petitiouer MUl alonj wifh all the docuinents basiag the said show cause notice and after hearing the petitioner in fhe xnatter pass fhe order in accordaiice wifh law. ^ar L.C. Bhadoo Judge Roshan/- '^••'