Prasan Dungdung vs The State Of Jharkhand
2022 Latest Caselaw 675 Jhar

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        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            W.P.(C) No.4256 of 2012
       Prasan Dungdung s/o Gabrial Dungdung, resident of Rendari, Gindra,
       P.O. & P.S.-Thethaitahgar, Dist.-Simdega.                ... ... Petitioner
                                         Versus
    1. The State of Jharkhand.

    2. The Principal Secretary, Forest & Environment, Govt. of Jharkhand,
       Ranchi, having office at Nepal House, P.O & P.S.-Doranda, Dist.-
       Ranchi.

    3. The Deputy Commissioner, Simdega, P.O. & P.S.-Sadar, Dist.-
       Simdega.

    4. The Divisional Forest Officer, Simdega Division, P.O. & P.S.-Sadar,
       Dist.-Simdega.

                                                              ...... Respondents
                                      -------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

-------

    For the Petitioner          : Mr. Abhay Prakash, Advocate
    For the Respondents         : Mr. Rahul Saboo, Advocate
                                  Mr. Jagdeesh, Advocate
                        ----------------------------
11/Dated 24th February, 2022

The matter has been taken up through video conferencing.

Perused the office note dated 07.12.2021. It appears from the order dated 18.11.2021 that due to typographical error in the year of the case, instead of '2012', it had been typed as '2013'.

The aforesaid order dated 18.11.2021 is modified to the extent that the year of the case shall be read as '2012' instead of '2013'.

This writ petition has been filed under Article 226 of the Constitution of India challenging the order dated 09.05.2012 passed by the Additional Chief Secretary, Forest & Environment, Govt. of Jharkhand, whereby and whereunder, while allowing the revision application, the order passed by the appellate authority has been quashed and set aside affirming the order of the confiscating authority.

Mr. Abhay Prakash, learned counsel for the petitioner has challenged the said order mainly on the ground that the revision

application has been preferred by the confiscating authority. He, therefore, submits that the revisional authority, since is a party to the proceeding by initiating a confiscating proceeding, cannot be allowed to make an application before the revisional authority against the order passed by the appellate authority, otherwise, the confiscating authority will be a party to the proceeding which was initiated on the basis of his application, before the revisional authority.

Mr. Jagdeesh, learned counsel for the respondent has not disputed the legal position rather has fairly submitted that the confiscating authority cannot be the applicant for filing revision. However, submission has been made that since the authority of the confiscating authority has been questioned, although, the confiscating authority has got no jurisdiction to make an application and the writ petitioner is not harping upon the issue on merit, therefore, after quashing the impugned order it may be remitted before the authority for taking recourse in accordance with law.

This Court has heard the learned counsel for the parties and perused the material available on record.

The fact of the case is that a confiscation proceeding has been initiated by the authorized officer from the confiscating authority being Confiscation Case No.03 of 2006. Against the aforesaid confiscating proceeding, an appeal was preferred before the Deputy Commissioner, being Appeal No.01 of 2006-07. The Appellate Authority quashed and set aside the entire confiscating proceeding. The confiscating authority, i.e., Divisional Forest Officer made an application for revision before the revisional officer which was registered as Revision Case No.02 of 2008.

The revisional authority in exercise of its power allowed the revision application by quashing and setting aside the order passed by the appellate authority and affirmed the order passed by the confiscating authority against which the present writ petition has been file invoking the jurisdiction conferred under Section 226 of the Constitution of India.

The ground which has been agitated by the learned counsel for the petitioner to the effect that the confiscating authority is having no

power to file a revision application after the order passed in confiscating proceeding has been quashed by the appellate authority.

The learned counsel for the petitioner to buttress his argument has relied upon the judgment rendered by the Patna High Court in Shiv Kumar Singh vs. State of Bihar & Ors., (2003) 4 PLJR 55.

This Court has perused the aforesaid judgment, particularly the consideration of the issue as under paragraph-8, whereby and whereunder, the finding has been arrived at by negating the jurisdiction of the forest officer, who happens to be the Divisional Forest Officer. Reason for the same has been referred therein that once the order passed by the Divisional Forest Officer, while exercising the power of the confiscating authority, has been reversed in the appeal, the consequence would be that the order passed by the confiscating authority will merge with the order passed by the appellate authority. In that circumstances, if the confiscating authority will make an application before the revisional authority, it will be nothing but recourse of its own order. The Patna High Court, taking into consideration the aforesaid aspect of the matter, negated the jurisdiction of the Divisional Forest Officer to prefer revision making observation that since there are other officers who can also prefer revision before the revisional authority that will be the proper recourse on the part of the concerned department. Reference of paragraph-8 is required to be made which reads as under:

"8. Section 2(2) of the Indian Forest Act, 1927 provides that "Forest Officer" means any person whom the State Government or any Officer empowered by the State Government in this behalf, may appoint to carry out all or any of the purposes of this Act or to do anything required by this Act or any rule made thereunder to be done by a Forest Officer. From a perusal of the definition it would clearly appear that it is an inclusive definition. Every person authorised by the State Government empowered by the State Government or so authorised by such officer would be deemed to be a Forest Officer. The general definition as provided under sub-section 2 of Section 2 will have to be read in conjunction with sub-section 2 and sub-section 3 of section 52 of the Indian Forest Act. Sub-section 2 provides that every officer seizing any property etc. shall produce the property before an officer not below the rank of the D.F.O. authorised by the State Government in this behalf ... From a perusal of sub-section 2 of section 52, it would clearly appear that there is a statutory distinction between an officer and an authorized officer. A Forest Officer would be one falling under Section 2(2) of the Act while an authorised officer would be an officer, specially authorised by the State Government for the purpose of sub-section 2 onwards of Section 52. In the present case, undisputedly, the D.F.O. Purnea was an authorised officer. After the seizure of the articles the same were to be

produced before him and the said authorised officer after giving proper opportunity of hearing to the affected party was obliged to pass a quasi- judicial order. The moment the D.F.O. is authorised to act as an officer for the purpose of section 52 of the Act then though he continues to be a Forest Officer but would not represent the interest of the State Government because he becomes an officer who has to pass a quasi- judicial order. The moment an authority is conferred upon any officer of the State Government to decide something for or against any party including the State Government then such officer has to act honestly and is not required only to protect the interest of the State Government. In the present matter, the order of confiscation was passed by the D.F.O., Purnea. Against the said order an appeal was preferred under Section 52(A) of the Act to the District Magistrate. From the appeal memo it would clearly appear that the Divisional Forest Officer, the Authorised Officer, was not joined as party respondent in the said appeal. However, the interest of the State Government was sought to be represented by the said officer and counsel engaged by him."

There is no dispute that the order passed by another High Court is not having any binding precedence but it has got persuasive value as has been held by the Hon'ble Apex Court in Pradip J. Mehta vs. Commissioner of Income Tax, Ahmedabad, (2008) 14 SCC 283.

"23. ...........We quite see the fact that the judgments given by a High Court are not binding on the other High Court(s), but all the same, they have persuasive value. Another High Court would be within its right to differ with the view taken by the other High Courts but, in all fairness, the High Court should record its dissent with reasons therefor. The judgment of the other High Courts, though not binding, have persuasive value which should be taken note of and dissented from by recording its own reasons."

This Court, after going across the judgment passed by the Patna High Court, is of the view that there is no reason to disagree with the aforesaid view because what has been referred in the aforesaid judgment, particularly at paragraph-8, cannot be said to be contrary to the settled position of law. Reason being that, if the confiscating authority will be allowed to prefer revision after setting aside the order passed by the confiscating authority by the appellate authority, in that circumstances, it will be nothing but the confiscating authority will be allowed to pursuing his own case by defending its own order, therefore, according to the considered view of this Court, the ground taken by the learned counsel for the petitioner in questioning the order passed by the revisional authority on the behest of the confiscating authority cannot be said to be approved.

This Court, in view of the discussion made hereinabove and considering the fact that the confiscating authority ought not to have preferred revision application, deems it fit and proper to interfere with

the order passed by the revisional authority since the revision was preferred by the confiscating authority itself.

Accordingly, the order passed by the revisional authority in Revision Case No.02 of 2008 dated 09.05.2012 is hereby quashed and set aside.

In the result, the instant writ petition is allowed.

It is left open upon the State authority to take decision by preferring revision, in accordance with law, if they so desire.

(Sujit Narayan Prasad, J.) Saurabh