IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.03.2011 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.No.26297 of 2001 Fr.Sebastian Fernancies ... Petitioner Vs. 1.The District Forest Officer, Gudalure, The Nilgiris. 2.Forest Range Officer, Gudalure, The Nilgiris. ... Respondents Prayer : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records of the first respondent herein made in TNF OR 64/2001 dated 21.06.2001 and quash the same and to direct the 1st respondent to refund the amount of Rs.4,00,000/- accepted by way of composition of the offence together with interest to the petitioner. For Petitioner : Mr.A.U.Ilango For Respondents : Mr.K.Rajasekar G.A (Forest) O R D E R The prayer in the writ petition is for issuance of a writ of Certiorarified Mandamus, to quash the order passed by the first respondent dated 21.06.2001 and to direct the first respondent to refund the amount of Rs.4,00,000/- accepted by way of composition of the offence, together with interest. 2. The facts of the case lie in a narrow campus:- The petitioner belongs to the society of Jesuits and he was the manager of St.Joseph Estate, measuring about 150 acres in Thorapally, Gudalur, Nilgiris District. On 20.06.2001 at about 5.00p.m. a team of forest officials came into the petitioner's residence and seized two guns and an air gun. According to the petitioner, two guns were https://hcservices.ecourts.gov.in/hcservices/ licenced and those guns held by him as retainer under order dated 27.11.1990 and the licence is in the name of President and Provincial of Karnataka Jesuit Province, Bangalore. It is stated that the forest officials took the petitioner in their jeep, to the office of the first respondent and he was detained over night. It was claimed by the forest officials that they recovered deer meat of 1.5 kgs from the refrigerator in the house and also an unlicensed gun in the petitioner's house. It is stated that the first respondent demanded a sum of Rs.4,00,000/- promising to drop all actions and stated that if the petitioner does not pay, he would be sent to prison. Therefore, the petitioner sent a message to their society of Jesuits and they collected the money and the same was paid by the petitioner on 21.06.2001, in order to avoid the ignominy of being sent to prison. Challenging the said remittance of Rs.4,00,000/- by way of composition fee, the present writ petition has been filed seeking for refund of the amount together with interest. 3. The learned counsel appearing for the petitioner submits that though in the affidavit filed in support of the writ petition, the petitioner has raised certain grounds regarding the validity of the provisions of the Wild Life (Protection) Act 1972, (hereinafter referred to as the “Act”) and the manner in which, the State of Tamil Nadu has adopted the same. The learned counsel is not canvassing those points in the present writ petition for the purpose of disposal of the present case. The contention of the learned counsel appearing for the petitioner is that the first respondent exceeded his jurisdiction and authority, by collecting a sum of Rs.4,00,000/- for composition of the offence by wrongly understanding the provisions of Section 54 of the Act and the intention of the Parliament is clear from the statue that a maximum of Rs.2,000/- alone can be collected by way of composition fee and this is more so because even when a person is fined under Section 51 of the Act, the fine amount cannot not exceed Rs.25,000/-. The learned counsel would further submit that in view of the expression under Section 54 (1) (b) Sub-Section (1) of Section 54 used in Section 54(4) is obviously a drafting error, because Section 54(4) of the Act, qualifies only Section 54(1) (a) as is seen from phraseology employed and purpose expressed in Section 54(4) agree only with Section 54(1)(a) of the Act and not with Section 54(1)(b), which glaringly speaks of totally different circumstances. On the above grounds, the learned counsel submits that the writ petition deserves to be allowed and the amount has to be refunded together with interest. 4. The learned Government Advocate appearing for the respondents, by relying upon the averments made in the counter affidavit submitted that the petitioner was in possession of .22 Riffle, 1 no. one 405 riffle, one DBBL gun, one air-gun and No.1 Catridge 12 bore 1 nos, 2 nos, 405 riffle catridges, without any license as per Section 50(1) (b) & (c) of the Wildlife Protection Act, 1972, and therefore, they https://hcservices.ecourts.gov.in/hcservices/ were seized from the petitioner's residence. Subsequent search of the field led to detection of one dead female deer with bullet injury and waste material of another deer following removal of meat. Since, the action of the petitioner was an offence under the Wild Life (Protection) Act, he was arrested along with his accomplices, C.K.Balan, Krishnan and Muniappan and they were produced before the first respondent for investigation. It is stated that the petitioner gave confession statement, admitting the guilt and he expressed his willingness to compound the offence, he had written in English saying 'accepted' and based on the same, the offence was compound for a sum of Rs.4,00,000/- and the same was remitted by the petitioner in the State Bank of India, Gudalore on 21.06.2001. For the possession of unlicensed weapons, an F.I.R. was lodged under the Arms Act. The killing of two spotted deer, which is an endangered species is a heinous offence and the compounding fee depends on the gravity of offence, value of the endangered species and such compounding was done only because, the petitioner was willing to compound. The petitioner having accepted to compound the offence and paid the compounding fee is now estopped from claiming refund. Further, it is submitted that the power under Section 54 vests with the administrative authority and this provision does not specify any maximum or minimum amount and this provision is deterrent in nature and this has been done to curb the offence, once for all. Therefore, it is submitted that the action of the respondent was fully justified. In support of his contention, the learned Government Advocate placed reliance on an unreported decision of this Court in Crl.O.P.Nos.15867 of 1999, etc., dated 22.06.2001, and prayed for dismissal of the writ petition. 5. Heard the learned counsel appearing for the parties and perused the materials available on record. 6. The short issue which falls for consideration is as to whether the petitioner could maintain a writ petition, seeking refund of the amount, which was paid as a compounding fee to avoid prosecution for an offence alleged to have been committed under the provisions of the Wild Life (Protection) Act, 1972. I have considered the defence putforth by the petitioner and reply by the respondent. 7. Section 54 of the Act deals with 'power to compound offence'. Under sub-section 1 of Section 54, the Central Government may by notification, empower the Director of Wild Life Preservation or any other officer and the State Government may by notification empower the Chief Wild Life Warden or any officer of a rank not inferior to that of a Deputy Conservator of Forests to do the following:- a) to accept, from any person against whom a reasonable suspicion exists that he has committed an offence against this Act, payment of a sum of money by way of compensation https://hcservices.ecourts.gov.in/hcservices/ of the offence which such person is suspected to have committed: and (b) when any property has been seized as liable to be forteited, to release the same on payment of the value thereof as estimated by such officer. 8. Sub-sections 2 and 3 of Section 54 of the Act are not relevant to the facts of the present case. Sub-section 4 of Section 54 of the Act as it stood prior to its amendment states that the sum of money accepted or agreed to be accepted as composition under clause (b), (referred above) shall in no case, exceed the sum of Rs.2000/-. According to the learned counsel for the petitioner the inclusion of clause (b) in sub-section 4 of Section 54, is a drafting error committed by the draftsmen of the legislation and it should be read in such a manner that the fine shall in no case exceeds a sum of Rs.2000/- even in the cases were compounding is done under clause (a). At the outset, this Court is not convinced with the submission made by the learned counsel for the petitioner for more than one reason. Firstly, the petitioner cannot seek for rewriting the statue by way of the present writ petition. Further, the petitioner seeks to read sub-section 4 of Section 54 of the Act by substituting clause (a) instead of clause (b), and such relief cannot be granted to the petitioner in the present writ petition. Therefore, the first submission made by the learned counsel for the petitioner that it is an error of legislative drafting as projected in the present case, cannot be agitated by way of the present writ petition. 9. It was pointed out that Section 54 of the Act stood amended by virtue of the Wild Life (Protection) Amendment Act 2003, Act 16 of 2003 w.e.f. 01.04.2003, in the said amendment under sub-section 4 of Section 54, clause (b) of sub-section 1, as was originally found was deleted and sub-section (1) alone was retained and the compensation fee was increased to Rs.2000 to Rs.25000. By relying upon the said provision, the learned counsel for the petitioner would submit that the legislative amendment itself is an indicative factor that there was an error in drafting, therefore, this Court should read the provision in such a manner to say that the maximum composition fee leviable shall be only Rs.2000/-, even prior to the amendment Act. The said submission of the learned counsel for the petitioner does not merit acceptance, since the amendment to Section 54, which was brought out by amendment Act 16 of 2003, taking into consideration the increase in Wild Life crimes and growing alienation of local communities from Wild Life Conservation programmes and the amendment bill as proposed among other things to increase the amount that can be realised as compensation from Rs.2000 to Rs.25000. It appears that by virtue of the amendment, the distinction which originally existed in the unamended Section 54(4) was done away with and clause (b) mentioned in sub-section 4 of Section 54 of the Act, was omitted. https://hcservices.ecourts.gov.in/hcservices/ In any event the Amending Act came into force w.e.f. 01.04.2003. It is seen that the alleged offence committed by the petitioner was much prior to the amendment, as it took place on 20.06.2001. Therefore, the petitioner cannot rely upon the amendment and he cannot permit to turn around and contend that the composition fine had to be restricted only to Rs.2000 or at the maximum of Rs.25000/- as per the amendment. This Court is not empowered to supplant or substitute words in a statue, and when the statue is clear and unambiguous, more particularly, with regard to imposition of fine or compounding fee cannot be stated to have a retrospective effect so as to reopen the past cases. In any event, the conduct of the petitioner shows that he voluntarily accepted to compound the offence in order to escape from the prosecution under the Wild Life (Protection) Act. Therefore, the petitioner is estopped from contending that the compounding fee, which was paid by him ought to be refunded. Therefore, the second contention raised by the petitioner also is devoid of any substance. Further, the Hon'ble Supreme Court as well as this Court have consistently held that a writ petition is not the appropriate remedy for refund claims. The payment which was made by the petitioner is not in the nature of a penalty, but it is a compounding fee and compounding took place only on the express consent of the petitioner. It appears that the petitioner has given his express consent by endorsing the words “accepted” and it is only thereafter, the first respondent proceeded to compound the offence. Though under the normal circumstances, when a refund claim is made by way of the writ petition, the parties are relegated to the appropriate authority/forum to agitate the claim for refund, as noticed above, amount paid by the petitioner is not a penalty or a fine pending adjudication of an offence rather, it is a fee paid by the petitioner voluntarily in order to escape from the clutches of law and to avoid prosecution under the Wild Life Protection Act. Therefore, this Court is convinced that the petitioner cannot be granted any liberty to agitate the same claim before any other authority or forum. 10. As pointed out by the learned Government Advocate, this Court in Crl.O.P. Nos.15867 of 1999 etc., batch, was dealing with a petition filed under 482 of CRPC, seeking to quash the proceedings of the forest authorities imposing compounding fee of Rs.3,00,000/-. This Court in its order dated 22.06.2001, elaborately considered the issue and held that Section 54 of the Act as it stood prior to the amendment clearly shows that any forest officer can collect compounding fees by way of compensation for the offence and the Section does not indicate the maximum limit and it was further held that the whole reading of the provision would reveal that it is open to the forest officer not only to collect compensation for the offence, but also to collect the value of the property seized. The order passed by this Court in the said petition squarely applies to the facts and circumstances of the case on hand. https://hcservices.ecourts.gov.in/hcservices/ 11. For all the above reasons, the petitioner has not made out a case for interference and accordingly, the writ petition fails and it is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pbn To 1.The District Forest Officer, Gudalure, The Nilgiris. 2.Forest Range Officer, Gudalure, The Nilgiris + 1 cc to Mr.A.U. Elango, Advocate SR.21156 W.P.No.26297 of 2001 JP(CO) Eu 7.4.11 https://hcservices.ecourts.gov.in/hcservices/