Bombay High Court

Arjun Ratansing Jadhav vs The State Of Maharashtra on 23 October, 2013

Bench: K.U. Chandiwal, A.I.S. Cheema

                                                         Cri.W.P.No.681/2013
                                     1

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                         BENCH AT AURANGABAD




                                                                      
              CRIMINAL WRIT PETITION NO.681 OF 2013




                                             
     Arjun Ratansing Jadhav,
     Age 50 years, Occ. Business & Agriculture,
     R/o at Post Pal, Taluka Raver,
     District Jalgaon                       ...        PETITIONER




                                            
          VERSUS

     1.   The State of Maharashtra,
          through Secretary,




                                  
          Revenue & Forest Department,
          Mantralaya, Mumbai - 400 032
                    
     2.   The Chief Conservator of
          Forests (Territorial),
                   
          Dhule, District Dhule.

     3.   The Deputy Conservator of Forests,
          Jalgaon Forest Division,
          Jalgaon, District Jalgaon.
      


     4.   The Deputy Conservator of Forests,
   



          Yawal Forest Division, Yawal,
          District Jalgaon.                ...         RESPONDENTS

                                      .....
     Shri N.B. Suryawanshi, Advocate for petitioner





     Shri K.G. Patil, A.P.P. for respondents/ State
                                      .....

                           CORAM:        K.U. CHANDIWAL &
                                         A.I.S. CHEEMA, JJ.





                           DATED:        23rd October, 2013.

                      Date of reserving judgment : 15/10/2013
                      Date of pronouncing judgment 23/10/2013


     JUDGMENT (Per A.I.S. Cheema, J.) :

1. Heard. Rule. Rule made returnable forthwith and

Cri.W.P.No.681/2013

heard finally with consent of both sides.

2. In nutshell, the case of petitioner is that, he had

taken contract of collection of gum from Chalishgaon Forest

area for the period 26.11.2008 to 30.6.2009. He had got a pass

issued to transport the gum from Chalisgaon to village Pal in

Taluka Raver, District Jalgaon and transported the gum. The

forest officials at Pal seized the gum at Pal and sealed the same

in two rooms of the house of petitioner. Petitioner claims, this

act of the forest officials is illegal.

3. The petitioner has supported his claim referring to

various documents filed on record. Respondents have filed

affidavit-in-reply and opposed the claims made by the petitioner.

The learned counsel for petitioner, on the basis of the

contentions raised and documents, has submitted as follows :-

(a) The petitioner was the highest bidder in auction for

collection of gum from 26.11.2008 to 30.6.2009 from

Chalisgaon forest area. As per the procedure, he was

required to store the gum collected at a particular

godown, which was allotted to him by the forest

officials. He was allotted godown at Hirapur, Taluka

Chalisgaon. As per the procedure, he received transit

passes to carry gum from the forest range up to the

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given godown. The passes are pointed out as

"Annexure C" from the record. It has been submitted

for the petitioner that, he had requested the Range

Forest Officer, Chalisgaon and was given transit pass/

order, permitting him to carry 22 quintals of Salai gum

and 15 guintals of ordinary Kad gum from Hirapur

godown to village Pal as per order dated 21.2.2009

(Annexure D) and the transit pass dated 11.3.2009

(Annexure E). According to the petitioner, on the basis

of such pass (Annexure E), the gum was transported to

village Pal at his residence and kept in two rooms.

(b) It has been submitted that, on 6.4.2009, respondent No.

4 came to the residence of petitioner and carried out

two panchanamas (Annexure F) and the gum stored in

two rooms was seized and the rooms were sealed. On

9.4.2009, again a panchanama was done and the gum

attached was weighed and found to be 3089 Kgs. of

Salai gum and 220 Kgs. of Kad gum. The Range Forest

Officer forwarded report dated 20.4.2009 to Assistant

Conservator of Forest, reporting that there was no

permission for storing of the said gum and truthfulness

of the claim that the gum was brought on Government

pass was required to be verified (Annexure G).

Submission is that, the petitioner was issued another

order dated 9.7.2009 (Annexure H) that the gum has

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been illegally collected and so, the same should be

handed over to the Range Forest Officer. The

petitioner moved an appeal (Annexure J), which can be

said to be representation to higher authorities of the

respondent No.4, claiming that the action of seizure

was illegal and the gum should be handed over to the

petitioner. The appeal-cum-representation was rejected

on the ground that appeal was not maintainable

(Annexure K). The petitioner claims that, the gum is a

minor forest produce and under the jurisdiction/ control

of respective village panchayats; and forest officials

have no control over the same.

being aggrieved by the order dated 9.7.2009 (Annexure

H), earlier Writ Petition No.6265/2010 (later converted

into Criminal Writ Petition No.525/2012) was filed

before this Court. At the time of hearing, it transpired

that, principles of natural justice had not been followed

while passing the impugned order and the A.P.P.

submitted that show-cause-notice would be served and

the points raised by the petitioner would be considered

by the Deputy Conservator of Forest concerned.

Consequently, the then impugned order dated 9.7.2009

was quashed and set aside and the matter was

remanded to the Deputy Conservator of Forest, Yawal

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Forest Region at Jalgaon with certain directions. The

petitioner then refers to the further developments of

issue of notice to him, dated 29.10.2012; his reply dated

19.11.2012 and detailed reply dated 30.11.2012. It has

been submitted that, the petitioner had then filed Writ

Petition No.3643/2013 to quash and set aside the

enquiry on the ground of delay and violation of

directions of the Court. Respondents stated that,

decision would be taken within four weeks and the Writ

Petition ig No.3643/2013 came to be disposed of

accordingly.

(d) According to the petitioner, the Range Forest Officer

then conducted an enquiry and submitted report dated

3.4.2013 (Annexure S). Some statements were also

recorded. According to the petitioner, empty

formalities were completed by recording statements

and respondent No.4 passed order dated 23.7.2013

(Annexure T), and the petitioner has been directed to

hand over the gum alleging that the same has been

collected from adjacent forest area.

This order dated 23.7.2013 is now challenged by

the petitioner, claiming that it has been wrongly held

that the gum was not the same which was transported

from Chalisgaon. Even otherwise, according to the

learned counsel, in the area of Pal, "The Scheduled

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Tribes and other Traditional Forest Dwellers

(Recognition of Forest Rights) Act, 2006 ("Forest Rights

Act" in short) has been enforced on 31.12.2007 and the

rights to minor forest produce vest in the Gramsabha.

It is submitted by learned counsel for the petitioner

that, gum is only of Kad and ordinary type and Pal is a

tribal forest area, where no auction is held. Since

Chalisgaon was non-tribal forest area, there auction

had been held. Pal falls within scheduled forest area

under the Forest Rights Act and the tribal people in the

area are entitled to collect the gum from the Pal forest

area. Learned counsel submitted that, the gum was

transported from Chalisgaon and even otherwise,

petitioner can purchase such gum from the local tribals

at Pal also and so, according to him, the seizure could

not have been done. It is claimed that, the seized gum

by now has become useless due to fungus and

respondents are liable to pay rent for the gum stored as

well as compensation.

4. Against the claim of the petitioner, the learned A.P.P.

for respondents has relied on the affidavit-in-reply filed by the

Assistant Conservator of Forest and referring to the documents

filed on record, learned A.P.P. claims that the petition has no

substance and should be rejected. Case put up and arguments

Cri.W.P.No.681/2013

for respondents are as follows :-

(a) The petitioner was given contract to collect ordinary

and Kad gum at Chalisgaon Range in Jalgaon Forest

Division. Ordinary gum includes Dhawada, Babool,

Khair, which are edible gums, but Salai gum is not

edible as it is used for making pastels (Dhoop Batti) and

so it is not ordinary gum. Village Pal is remote place in

Raver Forest Range of Jalgaon district. The petitioner

was transporting gum from Jalgaon Forest Division to

Yawal Forest Division, and so he was required to get

godown approved at Pal from Deputy Conservator of

Forest, Yawal Division. It is accepted that, on 6.4.2009

the house of petitioner was searched and it was found

that, 3089 Kgs. of Salai gum and 220 Kgs. of Kad gum

was there, but it is claimed that the gum was freshly

collected and was moist. The same was seized and

panchanamas of seizure and sealing of rooms were

carried out. It is accepted that, on 9.4.2009 again

panchanama was done and the gum was actually

weighed and found that there was 3089 Kgs. of Salai

gum and 220 Kgs. of Kad gum. The same was kept in

the custody of petitioner. Range Forest Officer, Raver

reported that the truthfulness of the claim that the gum

was brought on Government Pass was required to be

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verified. It is submitted by the learned A.P.P., that the

gum which was seized at the house of petitioner, was

different as it was wet and quantity was also different.

According to the respondents, the petitioner was in

illegal possession of Salai and Kad gum. The Deputy

Conservator of Forest, Yawal Division, under powers as

per Section 72(1)(c) of Indian Forest Act, 1927 (Forest

Act for short) was entitled to search the gum which had

been stored.

(b)

The affidavit for respondents claims that the transit

permit was of 22 quintals of Salai gum and 15 quintals

of ordinary and Kad gum whereas what was found was

3089 Kgs. of Salai gum and 220 Kgs. of Kad gum.

According to the respondents, Maharashtra Minor

Forest Produce (Regulation of Trade) Act, 1969 is

applicable only to Tendu and Apta and the petitioner is

wrongly referring to the said Act. The Transfer of

Ownership of Minor Forest Produce in Scheduled Areas

Act, 1997 does not apply in the present matter as

Chalisgaon does not fall under the scheduled area.

by respondent No.4 from the house of petitioner, had

been spread out for drying, as can be seen from the

panchanama. Apparently it was wet. The gum which

was collected in the Chalisgaon range had been

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transported to Hirapur godown on 21.1.2009 and

25.1.2009 as per the passes at Exhibit C. It is argued

that, such gum could not have remained moist for 3-4

months when gum was seized vide panchanama dated

6.4.2009. Learned A.P.P. submits that, the forest

officials rightly claimed that, the gum found in the

Yawal Forest Division from the house of petitioner was

not the same and that it had been illegally collected

from Yawal Division where there are ample Salai and

Kad trees. It has been submitted that, Yawal Forest

Division has many Salai, Dhawada, Khair, Kad trees,

from which gum is extracted. According to

respondents, there was illegal extraction in the area by

making notches and removing of barks whereby the

trees were being damaged and so, forest cases were

required to be filed as because of such activities the

trees die after some days. Respondents claim that, as

per Section 78 of the Bombay Forest Rules, 1942, if a

forest produce is transported, it is necessary that the

pass is examined and the articles are stored in depots

for the purpose. The learned A.P.P. has submitted that,

the impugned order has been passed after considering

all relevant factors and the petition deserves to be

rejected. Reliance has been placed on Section 69 to

claim that, whenever question arises whether forest

Cri.W.P.No.681/2013

produce is the property of the Government the same

has to be presumed to be the property of the

Government till the contrary is proved. According to

learned A.P.P., the claim of the petitioner that the gum

seized was transported from Chalisgaon needs to be

rejected for want of proof of actual transporting and

due to the difference in quantity. According to learned

A.P.P., the argument of learned counsel for petitioner

that Pal being in scheduled area, the gum can be

purchased from local tribals also, is not maintainable as

the petitioner has all along claimed that this gum was

brought from Chalisgaon in Jalgaon Forest Range and

no documents have been shown of purchase from local

tribals in Pal area. According to learned A.P.P.,

although transit pass was taken from Chalisgaon, there

is no evidence of actual transportation else the pass

would have got endorsed on the way as required.

5. We have perused the impugned order dated

23.7.2013 of the Deputy Conservator of Forest, Yawal Division

(Exhibit T). The Deputy Conservator of Forest considered the

concerned documents and orders in Writ Petition filed earlier

and gave opportunity to the petitioner. The concerned

documents which are also part of present record, were

discussed. He also obtained an enquiry report from Range

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Forest Officer (Annexure S in the present matter) and has dealt

with the specific averments made by the petitioner, and

recorded his reasons. After considering the material, he has

recorded findings as follows :

"(i) Salai gum 3089 Kg. and Kad gum 220 Kg.

which was seized on 6.4.2009 in the residential premises of petitioner and quantity of gum which was shown to Forest Officials vide T.P. No.093555 dt. 11.3.2009 2200 Kg. of salai gum and 1500 Kg. Kad and sada gum. The quantity of gum seized is in

excess of that shown as per Transit Permit. The seized gum was wet and was spread for drying.

(ii) The petitioner was granted a contract and was authorized to collect gum from Chalisgaon Range of

Jalgaon Forest Division for the period 2008-09. He has signed an agreement with Dy. C.F., Jalgaon.

(iii) On 11.3.2009 while transporting gum material from Hirapur (Chalisgaon) to Pal he has not produced

T.P. at Forest check post at Bhusawal. The petitioner himself was present with the vehicle. As responsible

govt. contractor of gum he should have himself shown the T.P. at Forest check post Bhusawal of Jalgaon Division. It seems that he purposefully avoided.

(iv) When he was transporting the gum material to Pal which is in the jurisdiction of Yawal Forest Division he should have applied for approval of godown to Dy. Conservator of Forest, Yawal/ R.F.O. Raver in writing. At least he should have intimated in

writing to concerned R.F.O. Raver and got his stocks verified. It seems that he purposefully avoided it.

Enquiry carried out by R.F.O. Raver also inferred that the gum material seized seems to be collected from adjoining forest areas around Pal village. This has been substantiated by seizure of illegal gum vehicles and Forest Officers registered for illegally making notches on Salai and other gum exuding trees in forest areas of Yawal Forest Division and in Pal forest round. Deputy Conservator of Forest Jalgaon Division letter vide No.1655 dt. 15.6.2009 also clarified that the gum material seized at residential

Cri.W.P.No.681/2013

premises of petitioner is not the same as collected by the petitioner in Chalisgaon Range considering the difference in quantity.

(v) The petitioner has collected gum from Chalisgaon Range of Jalgaon Division in the month of

January 2009. He transported the gum material on 4.3.2009 as per transit permit issued by R.F.O. Jalgaon. Gum material was seized from petitioner's residential premises on 6.4.2009. After a period of 2 months from collection the gum will not remain wet.

The petitioner Shri A.R. Jadhav, R/o Pal, Tal. Raver has failed to prove substantially the ownership of gum material seized from his residential premises on 6.4.2009 by Forest Officials irrespective of all the opportunities given to him. Mere possession of

Transit Permit does not prove his ownership beyond doubt. There are reasonable grounds to believe that

he has not transported the gum material collected by him in Chalisgaon Range to Pal, Tal. Raver which is very remote place in Tribal areas and is far from

market. He purposefully avoided verification of vehicle carrying gum (forest produce in Transit) permit as per provision of Indian Forest Act 1927, and provision of Section 41. There are grounds on record to believe that petitioner had malafide

intention and was found to possess 3089 Kg. Salai and 220 Kg. of Kad, sada gum collected by illegal

means from forest areas around Pal. This has been confirmed by the enquiry conducted by R.F.O. Raver.

(vii) Bombay Forest Rules 1942 Section 78 prescribes Depots and their purposes to which Forest

produce should be taken for examination previous to the grant of a pass in respect thereof.

(viii) As per provisions of Indian Forest Act 1927, Section 69 which states as under ;

Sec. 69- Presumption that the Forest Produce belongs to Government -

When in any proceedings taken under this Act, or in consequence of anything done under this Act a question arises as to whether any Forest Produce is the property of Government, such produce shall be presumed to be the property of Government until the contrary is proved.

Cri.W.P.No.681/2013

In view of facts and circumstances mentioned above, the gum seized at residential premises of the petitioner Salai gum 3089 Kg. and Kad, Sada gum

220 Kg. is Govt. property as per provisions of Sec. 69 of Indian Forest Act 1927 explained earlier."

6. The petition itself shows, that when the petitioner

got the tender for collection of gum in Chalisgaon area, as per

procedure, he was required to deposit the same at particular

godown allotted by the forest officials and was required to take

transit pass even within the Chalisgaon forest range as can be

seen at Exhibit C. Thus, he is aware that it is necessary to have

pass for transporting and need to keep the forest produce at

specified place after collection. Respondents are referring to the

Bombay Forest Rules, 1942. Chapter VI deals with "Transit of

Forest Produce". Rules show that no forest produce shall be

moved into or from or within district except as provided in the

Chapter, without a pass from some officer or person duly

authorized. The chapter deals with not only Forest Passes but

also Forest Depots. Petitioner claims that, from the forest

division of Chalisgaon, the gum was brought to Pal, Taluka

Raver vide Pass (Exhibit E). This pass specifically describes the

forest produce as "Salai Gum" - 22 quintals and "ordinary and

Kad gum" as 15 quintals. Even the route is specified as

Chalisgaon, Pachora, Bhusawal, Faizpur, Nhavi and via

Mahemandli. No material is there to show that although transit

pass (Exhibit E) was taken, the gum mentioned therein was

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actually transported to Pal as on the way there is Bhusawal

Forest Check Post and there is no record that the petitioner got

endorsed the transit pass at Bhusawal Forest Check Post. The

learned counsel for petitioner has submitted that, there was

nobody at the Forest Check Post and so the pass was not shown.

However, there is no material to show that any effort was made

to inform the authorities that there was nobody at the Check

Post, so the goods have been transported further. Even when

approaching remote area of Pal, the petitioner did not get the

godown (or place for storage) approved for keeping the forest

produce as per rules referred above.

7. The panchanamas recorded (Exhibit F), which are

dated 6.4.2009, show that, when the forest officials carried out

the inspection, it was found that, while some gum was stored in

bundles, some of it had been spread out on the floor. The report

of the Deputy Conservator of Forest having enquired into the

matter, discussed the material and found that the gum found in

the house of petitioner was wet. The gum as regards collection

at Chalisgaon Range, was in the month of January 2009.

Petitioner claims that he transported the gum in March 2009

and the same was seized on 6.4.2009. Forest officials, in

discharge of their duty and experience, claim that, after a period

of two month from collection, the gum will not remain wet. The

learned A.P.P. says that, this is one of the reasons why forest

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officials have found that the gum seized at the residence of

petitioner at Pal is not the same for which the pass was taken at

Chalisgaon.

8. Although Pass (Exhibit E) relied on by the petitioner

himself mentions that the goods were "Salai gum" to the extent

of 22 quintals and "ordinary and Kad gum" to the extent of 15

quintals, (which is also the description in the passes at Exhibit

C), at the time of arguments, the learned counsel for the

petitioner claimed that even Salai gum is ordinary gum. He has

thus tried to justify the quantity found in the house of petitioner.

However, the petitioner did not object to the type of gum

recorded in the documents at Chalisgaon. Even at the time of

panchanamas in April 2009 he does not appear to have disputed

when it was being recorded that Salai gum is found although he

was present and even signed the panchanamas. As such, now he

cannot claim that even Salai gum is ordinary gum. The affidavit

on behalf of respondents, in para 7, claims that, ordinary gum

includes Dhawada, Babool, Khair, which are edible gum, but

Salai gum is not edible as it is used for making pastels. The

affidavit claims (in para 19), that in the Yawal Forest Division,

there are various gum producing trees viz. Salai - 7,17,802,

Dhawada - 18,34,029, Khair - 3,15,936, Kad - 12,996. Thus, the

affidavit is that, these are gum from different trees. In the

transit pass (Exhibit E), "Salai" was shown separately and

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"ordinary and Kad gum" was shown separately. Record shows

that, although petitioner claims that he transported 2200 Kgs.

"Salai gum" and 1500 Kgs. of "ordinary and Kad gum", what was

seized at his residence was 3089 Kgs. of "Salai gum" and 220

Kgs. of "Kad gum". It is apparent that, the Salai Gum seized at

his house was much more than what he claimed to have

transported from Chalisgaon forest area. There is substance in

the submission on behalf of respondents that the gum seized at

the residence of petitioner at Pal is not from authorized source

and the petitioner has not been able to satisfy that it was the

gum transported by him from Chalisgaon area.

9. Petitioner submitted that, gum is minor forest

produce. The learned A.P.P. accepts this. It is further submitted

on behalf of petitioner that, Pal is in scheduled area. Even this is

not in dispute. It is then argued by the learned counsel for

petitioner that, looking to the provisions of Forest Rights Act,

the right of ownership of the minor forest produce vests in the

Gramsabha of Pal and so, the petitioner can acquire such gum

even from the local traditional forest dwellers and scheduled

tribes. This argument needs to be discarded as, soon after the

panchanamas dated 6.4.2009, when the respondents issued

order dated 9.7.2009 (Annexure H) to the petitioner, informing

that the gum is not one which has been collected from

Chalisgaon and has been illegally collected, the petitioner had

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taken up representation to superiors vide Exhibit J. In this

representation dated 24.7.2009 and even subsequently, the

petitioner has all along claimed that it was the same gum which

he had collected in the Jalgaon Forest Division from Chalisgaon

and had claimed that he had transported the same and so, he

was legally in possession. In the representation dated 24.7.2009

(Annexure J), petitioner did not claim that the gum had been

purchased locally from persons who have acquired forest rights

under the Forest Rights Act, 2006. It is rightly argued by the

learned A.P.P. that the petitioner has even otherwise failed to

show any document of locally purchasing at Pal. According to

the respondents, as per Section 4 of Forest Rights Act, there is

recognition and vesting of forest rights mentioned in Section 3 in

forest dwelling Scheduled Tribes and other traditional forest

dwellers. As per Section 6, the Gramsabha is the authority to

initiate the process for determining the nature and extent of

individual or community forest rights or both that may be given

to forest dwelling scheduled tribes and other traditional forest

dwellers within the local limits of its jurisdiction. Petitioner has

not shown document to show purchase from any such Scheduled

Tribes as traditional forest dwellers.

10. Respondents claim that, outside the jurisdiction of

the Panchayat, the rights still remain with the Government. Pal

village is adjoining forest area belonging to the forest as well as

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Wildlife Sanctuary Area. Section 4(1) of The Maharashtra

Transfer of Ownership of Minor Forest Produce in the Scheduled

Areas and the Maharashtra Minor Forest Produce (Regulation of

Trade) (Amendment) Act, 1997 reads as under : -

"4. Ownership of Minor Forest - Procedure to

vest Panchayat.

(1) The ownership of Minor Forest Produce found in the Government lands in the Scheduled Areas, excluding the National Parks and

Sanctuaries, shall vest in the Panchayat within whose jurisdiction such area falls.

Explanation.- The expressions"National Parks" and "Sanctuaries" used in this section shall have

the same meanings respectively, assigned to them under the Wild-life (Protection) Act, 1972."

11. Thus, areas of National Parks and Sanctuaries are

excluded. Again, Panchayat also has to adhere to the

prescriptions contained in the Working Plan, Management Plan

or Working Scheme under Section 5. Respondents are claiming

that the gum seized is illegally obtained from adjoining forest of

Pal and in the circumstances, is suspect. Respondents, in the

circumstances, rely on presumption under Section 69 of the

Indian Forest Act, 1927 to claim that until contrary is proved,

the forest produce shall presume to be the property of the

Government. Keeping in view the particulars as to how illegal

extraction of gum leads to death of trees, if petitioner has to

succeed, reliable proof has to be there. The same is wanting.