WP(C) 5798/2007 BEFORE THE HON’BLE MR JUSTICE B.P.KATAKEY JUDGMENT AND ORDERS(CAV) The petitioner who is the owner of a vehicle bearing registration No.MZ- 01D/4521 by the present petition has challenged the order of confiscation dated 9.10.2007 passed by the Divisional Forest Officer, Karimganj Division, Karimgan j (respondent No.3) in Forest Case No.PK/05 of 2007-08 of Patharkandi Range, bas ically on the ground of violation of the principles of natural justice and praye d for re-hearing of the said Forest Case by any other competent authority other than the respondent No.3, in compliance of the provisions of the Assam Forest Re gulation, 1891(in short, the Regulation). 2. The case of the petitioner in the writ petition is that on 16.6.2007 he received a notice from the Patharkandi Forest Range Office intimating him that t he aforesaid truck was seized by the said authority as the same was found loaded with few bundles of fire wood on 14.6.2007, in response to which he submitted h is reply on 26.6.2007 intimating the authority that the driver of the truck was carrying the said goods illegally and without his permission and requested the a uthority to release the truck. As the vehicle in question has not been released, the petitioner filed another application before the DFO, Karimganj on 3.7.07 pr aying for release of the said truck under the provisions of Section 49(A) of the Regulation. As no action was taken by the DFO on the said application, the peti tioner approached this court in WP(C) No.3486/2007, wherein this court vide orde r dated 20.8.2007 directed the DFO to assess the present value of the truck and thereafter on furnishing adequate security for the truck to the satisfaction of the DFO having regard to the value thereof and also on execution of an undertaki ng to produce the truck as and when required, to release the same in favour of t he petitioner. Though by the said order the DFO was directed to assess the value of the truck within a week from the date of receipt of the certified copy of th e order, but no action has been taken by the DFO in spite of receipt of the cert ified copy and only vide communication dated 29.9.07 the DFO informed the petiti oner about assessment of the value of the truck at Rs.8,25,000/- and asked to ta ke interim custody of the same by furnishing an irrevocable bank guarantee of th e said amount. Such direction, according to the petitioner, being not reasonable , he filed an application before the DFO on 4.10.07 intimating that it is not po ssible on his part to furnish any irrevocable bank guarantee and prayed for rele asing the vehicle after accepting the land security offered by his brother which was, however, rejected by the DFO vide letter dated 5.10.07. The petitioner the reafter approached this court again in WP(C) No.5515/2007 and this court vide or der dated 15.10.07 directed the DFO to release the truck without insisting for b ank guarantee and on furnishing other security as well as on execution of bond o ffered by the petitioner. According to the petitioner, in spite of such directio n the vehicle was not released. The further case of the petitioner is that the D FO, in the meantime on 5.9.07, issued a notice fixing the aforesaid Forest Case for hearing on 26.9.07, on which date an application was filed through his broth er seeking adjournment for 30 days, on the ground of his suffering from Viral He patitis-C, enclosing therewith a medical certificate issued by the attending doc tor. Accordingly, the adjournment was granted till 4.10.07, on which date anothe r prayer for adjournment of the case was made as he could not attend the hearing because of his illness, but the DFO without considering the prayer of the petit ioner for adjournment up-to 22.10.07 fixed the case on 9.10.07 for hearing and o n that day the order of confiscation was passed, thereby depriving the petitione r from the right of hearing as contemplated under Sections 49(5) and 49(6) of th e Regulation as he has not been given effective hearing and the opportunity to s atisfy the authorized officer that the truck was used without his knowledge or c onnivance or abatement. The further case of the petitioner in the writ petition is that he having not been informed about the materials sought to be relied upon in the confiscation proceeding by the authorized officer, his right to have an effective opportunity of hearing has been violated and consequently the procedur e laid down in Section 49(5) of the Regulation has also been violated. The petit ioner further contended that since the order of confiscation was passed in viola tion of the procedure laid down in Section 49 of the Regulation and also in viol ation of the principles of natural justice, though there is alternative remedy a vailable to him by way of review as well as statutory appeal u/s 49(B) and 49(C) of the Regulation, respectively, this court may not insist for exhausting the a lternative remedy first, before approaching this court under Article 226 of the Constitution of India. 3. The case of the respondents as reflected in the affidavit-in-opposition filed is that the petitioner was given the opportunity as required u/s 49(5) as well as u/s 49(6) of the Regulation as he was issued with the notice of initiati on of the confiscation proceeding as well as the opportunity to prove that the t ruck was not used by the driver with his knowledge, connivance or abatement and though the petitioner on receipt of such show cause submitted his representation and the case was adjourned till 9.10.07, he did not participate in the proceedi ng on the said date and no application for adjournment was also filed, therefore , the case was heard and decided in his absence and the confiscation order was p assed in accordance with the provisions of the Regulation. It has further been c ontended by the respondents in the affidavit-in-opposition that on receipt of th e order dated 20.8.07 passed by this court, the DFO on 31.8.07 requested the Dis trict Transport Officer, Karimganj to assess the value of the truck, who in turn , only on 28.9.07 submitted the assessment report to the DFO and accordingly on 29.9.07 informed the petitioner about the assessment made by the DTO, Karimganj and to take the interim custody of the vehicle by furnishing irrevocable bank gu arantee to the tune of Rs.8,25,000/- which the petitioner had declined. It is th e further case of the respondents that though an application for accepting the l and security was filed, the same was rejected by the DFO vide order dated 5.10.0 7 and this court though passed the order on 15.10.07 in WP(C) No.5515/07, the sa me could not be implemented, as the final order of confiscation has already been passed on 9.10.2007. According to the respondents, the petitioner with a view t o delay disposal of the confiscation proceeding has initially filed an adjournme nt application and thereafter did not participate in the proceeding on the date fixed i.e. on 9.10.07. The further stand in the affidavit-in-opposition is that there being adequate alternative remedy available by way of review as well as st atutory appeal u/s 49(B) and u/s 49(C) of the Regulation, this court may not ent ertain the writ petition filed by the petitioner challenging the order of confis cation dated 9.10.07. 4. I have heard Mr N. Dutta, learned senior counsel for the petitioner as w ell as Mr P. Roy, learned State counsel appearing on behalf of all the responden ts. 5. Mr Dutta, learned senior counsel has submitted that petitioner has been deprived of the procedural safeguards as provided under Section 49 of the Regula tion which are mandatory in nature and its infraction entails invalidation of th e order of confiscation dated 9.10.07. According to the learned senior counsel, the action on the part of the authorized officer in not allowing adjournment til l 22.10.07, though he did not disbelieve the illness of the petitioner, amounts to depriving him of his right to participate in the confiscation proceeding and to satisfy the authorized officer that the truck was not used by the driver with the knowledge, connivance or abatement of the petitioner. Mr Dutta further subm its that to have an effective participation in the confiscation proceeding again st the petitioner, the authorized officer is duty bound to intimate him about th e materials that may be used against him in such proceeding so that he can defen d himself effectively and properly, which has not been done in the instant case as the petitioner has not been intimated about the materials available on record against him and also not been given the copy of the offence report. Therefore, according to the learned senior counsel, the impugned order dated 9.10.07 is lia ble to be set aside being violative of the principles of natural justice as well as of the provisions contained in Section 49 of the Regulation. The existence o f alternative remedy by way of review or appeal cannot be the bar in entertainin g the writ petition challenging such illegal order passed by the authorized offi cer in violation of the principles of natural justice, submits Mr Dutta. In supp ort of his contention the learned senior counsel has placed reliance on the Apex Court judgment in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai an d others, {(1998) 8 SCC 1} as well as of a Single Bench judgment of this court i n Abu Bakkar Ali(Md.) vs. State of Assam and others, {(1999) 1 GLT 633}. Mr Dutt a has further submitted that it is apparent from the various orders passed by th e authorized officer that he acted in haste, only with a view to avoid the order s passed by this court in the earlier writ petitions for giving the interim cust ody of the vehicle and has in fact committed the contempt of this court by willf ully disobeying and/or violating the order passed by this court. Therefore, Mr D utta submits that the impugned order dated 9.10.07 may be set aside and the matt er may be remitted to any other competent authority other than the respondent No .3 for fresh disposal, as the DFO, by his conduct, appears to be bent upon to co nfiscate the vehicle without following the due process of law. 6. Mr Roy, learned State counsel, per contra, has submitted that it is evid ent from the record of the confiscation proceeding as well as the statements mad e in the writ petition that the petitioner has submitted the reply pursuant to t he notice issued to him u/s 49(5) of the Regulation. It is also evident that the opportunity as required to be given under Sub-section (6) of Section 49 of the Regulation was given and, therefore, it cannot be said that the principles of na tural justice and the procedural safeguards provided by Section 49 of the Regula tion have been violated. Mr Roy submits that the petitioner in fact through his authorized representative, namely his brother, participated in the proceeding by filing an application for adjournment and the authorized officer considering su ch application adjourned the case to 9.10.07, about which though the petitioner was duly informed, he did not participate in the proceeding dated 9.10.07 and, t herefore, the authority had to proceed to finalize the confiscation proceeding. According to Sri Roy, there being efficacious alternative remedy by way of revie w and statutory appeal u/s 49(B) and 49(C) of the Regulation, the present writ p etition is not maintainable, more so when there is no violation of the principle s of natural justice or the procedures laid down by Section 49 of the Regulation . Referring to the contention of the petitioner that the authorized officer has acted in haste only with a view to avoid the orders passed by this court in earl ier writ petitions, the learned State counsel has submitted that the authority o n receipt of the certified copy of the order dated 20.8.07, immediately on 31.8. 07 requested the DTO, Karimganj to assess the value of the truck, who in turn on ly on 28.9.07 assessed the value of the same and accordingly, the DFO on 29.9.07 informed the petitioner about such assessment and asked him to furnish the irre vocable bank guarantee for the said amount for release of the truck in his favo ur in the interim custody pursuant to the direction given by this court, but the petitioner has expressed his inability to furnish the bank guarantee and though requested the DFO to accept the security in the form of landed property, the sa me being not acceptable for the reasons recorded in the order dated 5.10.07, was rejected. It has further been submitted that as the authorized officer on 9.10 .07 has passed the final order in the confiscation proceeding, the order passed by this court on 15.10.07 directing release of the vehicle in interim custody wi thout insisting for bank guarantee and after accepting other security and person al bond, could not be implemented. Mr Roy, in support of his contention has plac ed reliance on a decision of the Apex Court in M.P. State Agro Industries Develo pment Corporation Ltd and another vs. Jahan Khan, {(2007) 10 SCC 88}. 7. I have considered the submissions of the learned counsel for the parties and also perused the records of the confiscation proceeding produced by the lea rned State counsel. 8. Chapter VIII of the Regulation provides for penalties and procedure to b e adopted for imposing the penalties. Section 49 (1) of the Regulation empowers any Forest Officer not below the rank of a Forester or any Police Officer not b elow the rank of a Sub-Inspector of Police, to seize any forest produce or such forest produce together with all tools, boats, motorized boats, vessels, cattle, carts, rafts, machinery, vehicles, trucks, ropes, chains or any other implement s, articles or materials used in commission of forest offence, when these is rea son to believe that a forest offence has been committed in respect of the same. Sub-Section (2) of Section 49 lays down the steps to be taken by officer seizin g any property under Sub-Section (1). Section 49(3) empowers any Forest Officer or Police Officer, to require the driver or any other person or persons in-char ge of any vehicle to stop the same and cause it to remain stationary as long as reasonably be necessary to examine the contents in the vehicle and inspect all r ecords relating to the goods carried, which are in possession of such driver or other person in-charge of the vehicle, when such Forest Officer or Police Office r has reason to believe that such vehicle has been or is being used for transpor tation of any forest produce in respect of which any forest offence has been com mitted. Sub-Section (4) of Section 49 empowers the Authorised Officer, for the reasons to be recorded in writing, to confiscate the forest produce seized toget her with all tools, vehicles, cattle, trucks etc. used in committing any forest offence, upon recording his satisfaction of commission of a forest offence. 9. Sub-Section (5) of Section 49 lays down the procedure to be adopted by t he Authorised Officer before passing any order of confiscation, i.e. to :- (a) send an intimation in the prescribed form about the initiation of the pr oceeding for confiscation of property to the Magistrate having jurisdiction to t ry the offence on account of which the seizure has been made; (b) issue a notice in writing to the person from whom the property is seized and to any person who may appear to the Authorised Officer to have some interes t in such property and in cases of motorized boats, vessels, vehicle trucks etc having a registered number to the registered owner thereof; (c) afford to the persons referred to in Clause (b) above and reasonable opp ortunity of making a representation within such reasonable time as may be specif ied in the notice, against the proposed confiscation; and (d) give to the Officer effecting the seizure and the person or persons refe rred to in Clause (b) or (c) above, a reasonable opportunity or being heard on a date or dates to be fixed for the purpose. 10. Sub Section (6) of Section 49 of the Regulation gives the persons referr ed to in clause (b) of Sub-Section (5), which includes the registered owner of a ny motorized boats, vessels, vehicle, trucks etc. an additional protection from confiscation. It provides that no order of confiscation can be made, if such per sons prove to the satisfaction of the Authorised Officer that such tools, vehicl es, machinery, trucks, vessel boats, motorized boats, rafts, carts, cattle, rope s, chain on any other implements, articles were used without his knowledge or co nnivance or abetment or as the case may be, without the knowledge or connivance or abetment of his servant or agent and that all reasonable and due precautions had been taken against the use of such object for commission of forest offence. Section 49 (6) of the Regulation, therefore, requires the Authorised Officer to give such persons, as referred to in Clause (b) of Sub-Section (5) of Section 4 9, an opportunity to prove as envisaged in Sub-Section (6). 11. Confiscation under Sub-Section (4) of Section 49 of the Regulation being a penalty to be imposed by the Authorised Officer, on being satisfied that a fo rest offence has been committed in respect thereof, depriving the person concern ed from the enjoyment of the property, the procedural safeguard as envisaged in Section 49 (5) as well as in Section 49 (6) have to be strictly observed. The A uthorised Officer before passing an order of confiscation has to intimate, in th e prescribed form, the Magistrate having jurisdiction to try the offence on acco unt of which the seizure has been made, about the initiation of the proceeding f or confiscation of property; to issue notice to the person from whom the propert y is seized and to any other person who may appear to the Authorised Officer to have some interest in such property and also to the registered owner, of the mot orized boats, vessels, vehicle, trucks etc. An opportunity to make representati on within reasonable time to such persons is also required to be given apart fro m giving a reasonable opportunity to the officer effecting the seizure of being heard on a date or dates fixed for that purpose. The Authorised Officer, as dis cussed above, is also required to give the opportunity to the persons concerned as required under Sub-Section (6) of Section 49 of he Regulation. 12. Section 49-B of the Regulation confers power on the Forest Officer not b elow the rank of a Conservator of Forests, as empowered by the State Government by notification in the official gazette, to entertain an application filed by an aggrieved person and to call for and examine any record or any order passed und er Section 49(4) and also to make such enquiry or cause such enquiry to be made and to pass such order as he deems fit. Such power, however, cannot be exercise d by such officer, if appeal under Section 49-C of the Regulation has already be en filed. No order prejudicial to any person can also be passed without giving such person a reasonable opportunity of being heard. Section 49 C of the Regula tion provides for appeal by any aggrieved person against an order passed under S ection 49 (4) or Section 49-B before the District Judge having jurisdiction over the area in which the property has been seized. Such appeal, however, has to b e filed within 30 (thirty) days from the date of communication of the order appe aled against. 13. In Abu Bakker Ali (supra) a Single Bench of this Court taking into consi deration the various provisions of the Regulation has opined that the procedural protection enjoined in the Regulation is required to be looked into in the ligh t of the amplitude of the power of summary nature and the grave effect of and co nsequences of the order of confiscation. The procedural safeguards envisioned b y the Regulation insist strict observance. In the said case, the order of confi scation was interfered with as the notice of initiation of confiscation proceedi ng did not indicate about any offence report, nor anything about intimation, in the prescribed form, about initiation of the proceeding for confiscation of the truck involved, to the Magistrate. That apart order sheet in the confiscation p roceeding was not properly maintained and the nature of hearing conducted and th e steps taken therein have not been reflected. The record also did not reflect recording satisfaction by the Authorized Officer as required under Section 49 (4 ) of the Regulation, in that case. The Authorised Officer’s order was also foun d to have suffered from non application of mind to the defence taken by the peti tioner therein. Hence, in that case, the order of confiscation was interfered w ith though such order is appellable under Section 49 C of the Regulation. 14. The main contention of the petition in this case is that since there is violation of procedural safeguard envisaged in Section 49 (4), Section 49 (5) an d Section 49 (6) of the Regulation, the impugned order needs to be interfered wi th and the proceeding may be directed to be heard by any officer other than the Divisional Forest Officer, the Authorised Officer, without insisting for exhaust ion of alternative remedy available to the petitioner by way of review under Sec tion 49-B and appeal under Section 49-C of the Regulation. 15. It is a settled position of law that restriction imposed by High Court i n exercising the jurisdiction under Article 226 of the Constitution of India, in the event of availability of an efficacious alternative remedy, is a self impos ed restriction. The High Court can in certain circumstances, namely, where the writ petition has been filed for enforcement of fundamental rights or where ther e has been a violation of the principles of natural justice or where order or pr oceedings are wholly without jurisdiction or the vires of an Act is challenged, exercise the jurisdiction under Article 226 of the Constitution and issue prerog ative Writs, even where there is efficacious alternative remedy available. [Whir lpool Corporation (supra) and M.P. State Agro Industries Dev. Corporation (supra )]. 16. In the case in hand, it is apparent from the materials available on reco rd of the confiscation proceeding that on 14.6.07, the vehicle in question belon ging to the petitioner was seized by the forest officials u/s 49(1) of the Regul ation as some forest produce was found to be carried in the said vehicle. The se izing officer on 15.6.07 intimated the Authorized Officer about such seizure. On 16.6.07, a report was submitted before the Chief Judicial Magistrate, Karimganj , about the arrest of the driver and the handyman of the truck and also the seiz ure, by which the said two accused persons were also handed over to the court. A notice dated 16.6.07 was also issued to the petitioner to produce the proof of legality and origin of the forest produce seized and also to show cause as to wh y the vehicle seized shall not be confiscated to the State. The petitioner on re ceipt of such notice submitted his reply on 26.6.07 to the Range Officer contend ing that he never allowed the driver or the handyman to carry any forest produce and