Rustam Tamang vs The State Of Assam And 3 Ors
2022 Latest Caselaw 142 Gua

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GAHC010076362021




                        THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                            Case No. : WP(C)/2833/2021

         RUSTAM TAMANG
         S/O LATE GANGA TAMANG
         RESIDENT OF LAKLA GAON, JAGUN, PS LEKHAPANI, DIST
         TINSUKIA,ASSAM



         VERSUS

         THE STATE OF ASSAM AND 3 ORS
         REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
         OF ASSAM, ENVIRONMENT AND FOREST DEPARTMENT, DISPUR JANATA
         BHAWAN, GUWAHATI 781006

         2:DIVISIONAL FOREST OFFICER

          DIGBOI DIVISION
          DIGBOI
          DIST TINSUKIA
          ASSAM 786171

         3:OFFICE OF THE RANGE FOREST RANGE OFFICER

          GOVT. OF ASSAM
          REPRESENTED BY FOREST RANGE OFFICER
          JAGUN RANGE
          JAGUN
          DIST TINSUKIA
          ASSAM 786171

         4:NAMCHIK BEAT OFFICER

          JAGUN RANGE
          JAGUN
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             DIST TINSUKIA
             ASSAM 78617

Advocate for the Petitioner   : MR. B BARUAH

Advocate for the Respondent : SC, FOREST




                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                           ORDER

18.01.2022

Heard Mr. B. Baruah, learned counsel for the petitioner and Mr. D. Gogoi, learned Standing Counsel appearing on behalf of the Forest Department.

2. This writ petition has been filed challenging the seizure of the goods vehicle bearing Registration No.AS-23-CC-3228 belonging to the petitioner by the Forest Officials of Jagun Range, Jagun.

3. The facts of the instant case as alleged by the petitioner in the writ petition is that the petitioner had purchased on loan a goods vehicle bearing Registration No.AS-23-CC-3228 in the year 2019. On 05.12.2020 one Sri Raja Pegu hired the vehicle of the petitioner and he along with some other persons on being suspected to be involved in loading sawn timber at Waru area near Tinkopani RF into the vehicle of the petitioner, the Forest Officials of Jagun Range under Section 24, 25, 40 and 41 of the Assam Forest Regulation 1891 as amended by Act of 2005 arrested the said persons and had seized the vehicle of the petitioner.

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4. The petitioner on coming to learn about the incident applied for the certified copy of the Seizure List and the Seizure Report as prepared by the Namchik Beat Officer, Jagun Range and could come to learn that the petitioner's vehicle was also seized. Consequently the petitioner approached the learned SDJM, Margherita seeking lawful custody of the vehicle in connection with CR Case No.23/2020 registered under Section 24, 25, 40 and 41 of the Assam Forest Regulation 1891 on the basis of the incident which took place on 05.12.2020. The learned Judicial Magistrate vide an order dated 25.01.2021 rejected the Zimma Petition filed by the petitioner on the basis of a report of the Forest Range Officer, Jagun Range, Jagun that confiscation proceedings have been initiated.

5. Thereupon the petitioner on 08.02.2021 filed a petition under Section 49 A of the Assam Forest Regulation 1891 read with Section 451 Cr.P.C for releasing the vehicle of the petitioner upon execution of the Bond. The Forest Range Officer, Jagun Range, Jagun vide an order dated 09.02.2021 rejected the petition filed by the petitioner on the ground that confiscation proceeding is pending before the DFO, Digboi the Authorized Officer. It is against the action for not releasing the vehicle of the petitioner which the petitioner contends to be illegal, arbitrary and unauthorized that the petitioner has approached this Court under Article 226 of the Constitution of India.

6. This Court on 27.04.2021 after hearing the parties issued Notice returnable on 12.05.2021 and directed the Forest Department to place on record in the form of affidavit their stand on or before 12.05.2021. In the interim, it was Page No.# 4/8

further directed that the status quo as regards the vehicle in question shall be maintained till the returnable date. Thereafter a perusal of the orders passed by this Court and the records reveals that the respondent Forest Department did not file any affidavit in spite of the specific direction issued in the order passed on 27.04.2021. In fact the perusal of the order dated 12.11.2021 reveals that the Standing Counsel, Forest Department had placed a communication dated 16.09.2021 before this Court wherein it was mentioned that the confiscation proceedings would be initiated on completion of the enquiry. It further transpires from the said communication that as on 16.09.2021 no confiscation proceeding was initiated. Today when the matter had been taken up and on a pointed query being made to the Standing Counsel appearing for the Forest Department as to whether any confiscation proceedings have been initiated, there has been no materials placed on record on the basis of which this Court can arrive at a conclusion that there has been any confiscation proceedings initiated.

7. Mr. D. Gogoi, Standing Counsel for the Forest Department submits that a communication dated 30.09.2021 was issued by one Detecting Officer having his office at the Office of the Range Forest Officer, Jagun Range, whereby the petitioner was asked to produce the necessary documents to show his ownership over the vehicle in question and to the said communication the petitioner had replied that as the matter is pending before this Court in WP(C) 2833/2021, the petitioner requested the said authority to maintain status quo and further stated that all concerned documents pertaining to the vehicle in question are lying before this Court. On the basis of the said communication, Mr. D. Gogoi, learned Standing Counsel submits that the Forest Department have Page No.# 5/8

been taken necessary steps for the release of the vehicle provided the petitioner approaches the concerned appropriate authority by producing all the details showing his ownership as regards the vehicle in question.

8. Be that as it may it is apparent from the stand which has been taken by the Forest Department that there has been no confiscation proceedings initiated till date inasmuch as, the confiscation proceeding has to be initiated by an officer not below the rank of an Assistant Conservator of Forest and there has been no materials placed on record that there has been any confiscation proceedings initiated in terms of Section 49 of the Assam Forest Regulation 1891. In this regard Section 49-A of the Assam Forest Regulation 1891 being relevant needs to be looked into and the same is quoted hereinbelow :

"49-A. Power to release property seized under Section 49- Any Forest Officer not below the rank of a Forest Ranger, whose subordinate has seized any tools, vehicles, trucks, vessels, rafts, machineries, boats, motorised boats, cattle, ropes chains or any other implements, articles, etc. under Section 49, may release the same on the execution by the owner or the person-in-charge thereof of a bond for the production of the property so released if and when so required before the Magistrate having jurisdiction to try the offence or before any Authorised Officer whenever required for the purpose as mentioned under Section 49 to proceed ahead with the offence on account of which the seizure has been made :

Provided that whenever such release is made the officer releasing the property shall immediately make a report to the Authorised Officer describing the circumstances and the reasons for the release of the property to the claimant or the owner or the person in charge of the property."

9. A perusal of the said Section would go to show that any Forest Officer not below the rank of the Forest Officer, whose subordinate has seized any tools, Page No.# 6/8

vehicles, trucks, vessels, rafts etc. under Section 49 may release the same on the execution by the owner or the person-in-charge thereof of a bond, for the production of the property so released if and when so required before the Magistrate having the jurisdiction to try the offence or before any Authorised Officer whenever required for the purpose as mentioned under Section 49 to proceed ahead with the offence on account of which the seizure has been made. The Proviso added to the said Section also makes it clear that whenever such a release has been done by any Forest Officer not below the rank of the Forest Ranger, the said officer releasing the property shall immediately make a report to the Authorised Officer describing the circumstances and the reasons for releasing the property to the claimant or the owner or the person in charge of the property.

10. It is further apparent that the petitioner had already filed an application under Section 49-A before the Forest Ranger, Jagun, whose subordinate had seized the vehicle of the petitioner. However, the said application was rejected on the ground that the confiscation proceedings have been initiated. Admittedly there is no confiscation proceeding till date and as such the failure to exercise the jurisdiction by the authority concerned under Section 49-A of Assam Forest Regulation 1891 as would be apparent from the order dated 09.02.2021 on the basis of a non-existent confiscation proceeding amounts to malice in law and consequently the impugned actions of the respondent authorities in not releasing the vehicle of the petitioner in exercise of the powers under Section 49-A is liable to be interfered with. It is unfortunate that the petitioner has been made to run from pillar to post by the respondent authorities to get release of this vehicle on the basis of a non-existent fact of initiation of a confiscation proceedings. The Supreme Court had in the judgment rendered in the case of Page No.# 7/8

S.R. Venkataraman vs. Union of India reported in (1979) 2 SCC 491 at paragraphs 5 to 8 held as follows :

"5. We have made a mention of the plea of malice which the appellant had taken in her writ petition. Although she made an allegation of malice against V. D. Vyas under whom she served for a very short period and got an adverse report, there is nothing on the record to show that Vyas was able to influence the Central Government in making the order of premature retirement dated March 26, 1976. It is not therefore the case of the appellant that there was actual malicious intention on the part of the Government in making the alleged wrongful order of her premature retirement so as to amount to malice in fact. Malice in law is, however, quite different. Viscount. Haldane described it as follows in Shearer v. Shields :

"A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore, be guilty of malice in law, although, so far the state of his mind is concerned, he acts ignorantly, and in that sense innocently."

Thus malice in its legal sense means malice such as may be assumed from the doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause.

6. It is however not necessary to examine the question of malice in law in this case, for it is trite law that if a discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith. As was stated by Lord Goddard C. J., in Pilling v. Abergele Urban District Council, where a duty to determine a question is conferred on an authority which state their reasons for the decision, "and the reasons which they state show that they have taken into account matters which they ought not to have taken into account, or that they have failed to take matters into account which they ought to have taken into account, the court to which an appeal lies can and ought to adjudicate on the matter.

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7. The principle which is applicable in such cases has thus been stated by Lord Esher M. R. in The Queen on the Prosecution of Richard Westbrook v. The Vestry of St. Pancras:

"If people who have to exercise a public duty by exercising their discretion take into account matters which the Courts consider not to be proper for the guidance of their discretion, then in the eye of the law they have not exercised their discretion.

This view has been followed in Sedler v. Sheffield Corporation

8. We are in agreement with this view. It is equally true that there will be an error of fact when a public body is prompted by a mistaken belief in the existence of a non-existing act or circumstance. This is so clearly unreasonable that what is done under such a mistaken belief might almost be said to have been done in bad faith; and in actual experience, and as things go, these may well be said to run into one another."

11. Accordingly, the instant petition stands disposed of with a direction to the Forest Range Officer, Jagun Range, Jagun to forthwith release the vehicle of the petitioner upon execution of a Bond by the petitioner in terms with Section 49-A of the Assam Forest Regulation, 1891 subject to the petitioner producing the necessary documents showing that he is the owner of the vehicle. It is further made clear that if the concerned respondent authorities initiate confiscation proceedings, the petitioner shall do the needful as is required under Section 49(6) of the Act.

12. With the above observation, the petition stands allowed. No costs.

JUDGE

Comparing Assistant