Digambar Shivram Tangade vs State Of Mah. Thru. R. F. O. ...
2017 Latest Caselaw 4438 Bom

   lpa311.08                                                                        1



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH

              LETTERS PATENT APPEAL NO.  311  OF 2008
                                IN
                 WRIT  PETITION NO.  1605  OF  1998


  Digambar s/o Shivram Tangade,
  aged about 40 years, occupation
  Agriculturist, r/o Panda, Tq. 
  Mehkar, District - Buldhana.                     ...   APPELLANT

                    Versus

  1. State of Maharashtra
     through Range Forest Officer,
     Ghatbori, Tq. Mehkar,
     District - Buldhana.

  2. Sub-Divisional Officer,
     Mehkar, District - Buldhana.                  ...   RESPONDENTS



  Shri N.H. Joshi, AGP for the respondents.
                     .....

                               CORAM :      B.P. DHARMADHIKARI &
                                            ROHIT B. DEO, JJ.

JULY 13, 2017.

ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)

Nobody for the appellant.

2. Shri Joshi, learned AGP appeared for the

respondents. With his assistance, we have perused the records.

3. A Tractor and Trolly, carrying trees illegally felled,

were seized by the Range Forest Officer at Mehkar. In his

capacity as "Tree Officer" under Maharashtra Tree Felling

(Regulation Act), 1964, (hereinafter referred to as 1964 Act),

an order of seizure was passed on 30.09.1997. The owner

thereof filed an Appeal before the Sub-Divisional Officer,

Mehkar and the Sub-Divisional Officer, Mehkar, on 17.04.1998,

sent a communication to the Tree Officer and Range Forest

Officer that a supratnama was filed and order has been passed

on 15.04.1998 and Tractor and Trolly was directed to be

released on supratnama. He, therefore, directed the Tree

Officer to release the same into custody of the owner and report

compliance by 29.04.1998. It appears that thereafter said Tree

Officer has, after following proper procedure, approached this

Court in Writ Petition No. 1605 of 1998.

4. The learned Single Judge decided Writ Petition No.

1605 of 1998 on 03.02.2006, found that the Appeal under

Section 247 of the Maharashtra Land Revenue Code, 1966,

filed before the Sub-Divisional Officer, against the act of the

Tree Officer/ Range Forest Officer, was itself not maintainable.

Hence, the direction issued by the Sub-Divisional Officer was

found to be without jurisdiction and accordingly the same has

been quashed and set aside.

5. The Tractor owner has challenged this judgment

dated 03.02.2006 in present Letters Patent Appeal.

6. The learned Single Judge, after hearing the parties,

found that the Tree Officer, who has ordered seizure, was a

Forest Officer and, therefore, could not have been treated as a

Revenue Officer or a Survey Office, hence an Appeal under

Section 247 of the Maharashtra Land Revenue Code, could not

have been filed against the action of seizure of Tractor and

Trolley.

7. With the assistance of the learned AGP, we have

perused the provisions of Maharashtra Felling of Trees

(Regulation) Act, 1964, (hereinafter referred to as 1964 Act)

under which Range Forest Officer had effected seizure. The

said 1964 Act regulates cutting of trees even in non forest

areas. Section 2(f) defines "Tree" to mean tree specified in the

Schedule and Section (ff) defines "Tree Officer" to mean a

'Forest Officer' not below the rank of a Range Forest Officer.

Section 4 provides for penalty for felling of trees in

contravention of Section 3. Section 3 imposes restriction upon

felling of trees and expects a person, who wishes to fell a tree,

to apply in writing to the Tree Officer for permission in that

respect.

8. In present matter, we are not required to delve

more into these provisions. The Tree Officer, when he finds

that a particular vehicle has been used for transporting illegally

felled tree, is authorized to forfeit to the State Government

such vehicle. In exercise of this power, the petitioner before

this Court had forfeited Tractor and Trolley.

9. Section 6 of 1964 Act supra prescribes procedure in

cases to be dealt with under the said Act. It shows that the

provisions contained in Chapter XII and Chapter XIII of the

Maharashtra Land Revenue Code, 1966, apply in relation to

cases of unauthorized felling of trees under the Code.

10. Sections 26 & 27 of the Maharashtra Land Revenue

Code, 1966, are the relevant provisions. Section 26 prescribes

vesting of trees and forest in Government. Section 27 is about

recovery of value of trees unauthorizedly appropriated. The

value can be recovered as arrears of land revenue and this

action is without prejudice to criminal proceedings which may

be instituted against wrong doers.

11. Section 247 of the Code provides for Appeal and

Appellate forums. The said section shows that against an order

passed under Section 27 of the Code, an Appeal can be filed as

per scheme of Schedule 'E' appended to the Code. In the light

of this arrangement in the Code, read with Section 6, it is

apparent that an Appeal could have been filed against the order

of the Tree Officer before the Sub-Divisional Officer. The

attention of the learned Single Judge is apparently not drawn

to Section 6 of 1964 Act and, therefore, the impugned

judgment came to be delivered.

12. The learned AGP, however, has pointed out to us

that in writ petition filed before the learned Single Judge, the

prayer was to set aside direction dated 15.04.1998 and a letter

dated 17.04.1998 only.

13. We find that the Sub-Divisional Officer as an

Appellate Authority has obtained supratnama and, therefore,

was expecting the Range Forest Officer to release Tractor and

Trolley, as an interim measure, during the pendency of Appeal

under Section 247 of the Code. Obviously, the material on

record does not show that that Appeal was decided finally at

least till 03.02.2006 when Writ Petition No. 1605 of 1998 was

allowed. If the Appeal has been disposed of as without

jurisdiction by the Sub-Divisional Officer, because of judgment

dated 03.02.2006, that may not be in accordance with law.

14. Very fairly, the learned AGP, at this stage also

points out that he is not aware whether after said judgment,

Tractor and Trolley are still retained by the department or have

been released in favour of its owner as during the pendency of

the Letters Patent Appeal, no interim order has been granted.

15. We find that in this situation, interest of justice can

be met with by restoring the matter filed under Section 247 of

the Maharashtra Land Revenue Code, by respondent No. 1 -

Digambar Shivram Tangade, back to the Sub-Divisional Officer,

Mehkar. The Sub-Divisional Officer, Mehkar, shall, ignoring

the order of supratnama, if it is still not complied with, proceed

to hear that Appeal finally and decide it within next three

months as per law. The fate of Tractor and Trolley can

thereafter be worked out or decided as per that adjudication.

16. Accordingly, we quash and set aside the judgment

dated 03.02.2006 and dismiss Writ Petition No. 1605 of 1998

with above directions. Letters Patent Appeal is accordingly

allowed and disposed of. No order as to costs.

           JUDGE                                                     JUDGE
  *GS.