Orissa High Court
Namita Barik vs State Of Odisha And Another on 18 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) NO. 33138 OF 2022
Namita Barik .... Petitioner
Mr. Rabinarayan Nayak, Advocate
-versus-
State of Odisha and another .... Opp. Parties
Mr. B. Panigrahi,
Additional Standing Counsel
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 18.04.2023
4. 1. This matter is taken up through hybrid mode.
2. Judgment dated 28th March, 2022 (Annexure-4) passed in
FAO No.17 of 2017 is under challenge in this writ petition,
whereby learned 2nd Additional District Judge-II, Baripada,
Mayurbhanj while dismissing the appeal filed under Section
56(2-e) of the Orissa Forest Act, 1972 confirmed judgment dated
27th April, 2017 (Annexure-3) passed by the Authorized Officer-
cum-Assistant Conservator of Forest, Baripada Forest Division,
Baripada in O.R. Case No. 115P of 2015-16 confiscating 6 pieces
of Babul round logs with bark (15.42 Cft.), 2 pieces of
Panigambhari round log with bark (2.05 Cft.), 1 piece of
Kanchan round log with bark (1.07 Cft.) and 5 quintals firewood
along with Tata 241 DI Massy Ferguson Tractor bearing
Registration No.OD-11B-4398 and Trolley bearing Registration
OD-11B-4399.
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3. Mr. Nayak, learned counsel for the Petitioner submits
that the vehicle in question belonged to the Petitioner. On 8th
December, 2015, the vehicle was carrying of the aforesaid logs
and firewood from the recorded land of the driver of the vehicle,
namely, Sri Minaketan Nayak, to the burial ground (Smasan) for
cremation of the body of his father-in-law, who died on the said
date. The vehicle along with logs and firewood were seized by
the forest officials on the allegation that the same were being
transported without having valid TT permit. Explaining the facts
and circumstances of the case, Mr. Nayak, learned counsel for
the Petitioner submits that since the logs were being transported
from the recorded land of the driver of the Petitioner to the burial
ground (Smasan) for cremation of the body of his father-in-law,
it cannot attract the provisions of the Forest Act and the Rules
made thereunder. When the material seized were being
transported from the recorded land and not for a forest, no T.T.
permit is required. Neither the Authorized officer nor learned
Appellate Court considered these material aspects of the case and
passed the impugned order. In support of his case, Mr. Nayak,
learned counsel for the Petitioner relied upon the decision in the
case of N.V. Gopalaswamy -v- Assistant Conservator of
Forests-cum-Authorized Officer, Nabarangpur Division and
another, reported in 1990 (II) OLR 400, wherein it is held as
under:
"4. The above apart, there are provisions in the Rules
to hold that fire-wood has to be regarded as forest
produce for the purpose of obtaining transit permit
visualised by Rule 4. We have said so because : (1)
The expression 'minor forest "produce' has been"
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defined in Rule 2(1)(h) of the Rules to mean "forest
produce other than timber, fire-wood, charcoal and
bamboos". This indicates that forest produce includes
fire-wood. (2) While dealing with the question
regarding cases in which permit shall not be required,
Rule 5 states that no permit shall be required to cover
transit of forest produce, inter alia, in the case of fire-
wood not exceeding one headload, vide Clause (h) of
Sub-rule (1). This would first show that as per Rule 5
fire-wood is a forest produce, and secondly transit
permit is necessary in those cases where the quantity
to be transported is more than one headload. (3) Sub-
rule (8) of Rule 7 under the heading" Application for
permit and order thereon" shows that such an
application is necessary for removal of fire-wood
from private holdings indicating thereby that fire-
wood would be forest produce inasmuch as Rule 4 of
the Rules requires transit permit for transit of forest
produce alone. This apart, a reference to the Schedule
of Rate for Forest Produce in Orissa Rules, 1977
shows that rates have been proved for fire-wood also
as per Schedule II-C which would indicate that as per
these Rules fire-wood has been taken to be forest
produce.
5. Because of all the above, we have no hesitation in
concluding that fire-wood is a forest produce. The
next question for examination is as to when transit
permit is required to transport fire-wood from one
place to another. Though Rule 4 of the Rules has been
couched in wide language which would indicate as if
transit permit would be needed whenever fire wood is
sought to be transported by land; rail or water, it
would seem that such permit would be needed only
when transport is involved from forest area to areas
located outside it. We have come to this conclusion
for these reasons:
(1) The definition of fire-wood, as noted above
as flowing from what has been stated in Sub-clause
(a) of Clause (ii) of Section 2(g) of the Act, would
show that fire-wood would be a "forest produce"
when it is found in or brought from a forest. This
shows that fire-wood would be a forest pronounce for
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the purpose of transit permit only when it is being
brought from a forest.
(2) Rule 5(1)(h) of the Rules has stated that no
transit permit shall be required in case of fire-wood if
the same does not exceed one head-load. This would
indicate that carrying of head-load of fire-wood from
forest was in mind of the rule-making authority. This
transport could not have been from places outside the
forest area."
(3) It is common knowledge that when fire-
wood is purchased from market for domestic purpose
and the same is transported from the market to one's
house, no transit permit is required. Indeed, Rules
5(1)(e) of the Rules exempts from the requirement of
obtaining transit permit in some cases where the
forest produce is needed for bona fide "domestic
use".
3.1 He also relied upon the order dated 8th September, 2022
passed by this Court in W.P.(C) No. 12126 of 2022, which was
passed relying upon the aforesaid case law. He, therefore,
submits that in the view of the fact that logs transported being
forest produce were not transported from forest,, provisions of
the Orissa Timber and other Forest Produce Transit Rules, 1980
(for short 'the Rules, 1980') is not applicable and the seizure is
bad in law. He, therefore, prays for setting aside the impugned
order under Annexure-4 and to release the aforesaid Tractor and
Trolley forthwith.
4. Mr. Panigrahi, learned Additional Standing Counsel
although does not dispute the factual position but submits that
admittedly logs were being transported without having valid T.T.
permit. He, of course, submits that logs and firewood were not
being transported from any forest.
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5. In view of the submissions made by learned counsel for
the parties, this Court without delving into the details of facts and
circumstances of the case holds that since the logs seized were
being transported from the recorded land of the driver of the
Petitioner, namely, Sri Minaketan Nayak, for cremation of the
body of his father-in-law, it can be safely said that those were
meant to be used as firewood only. As such, it does not attract
the provision of Rules, 1980. As such, the seizure of the vehicle
of the Petitioner is bad in law. Hence, the impugned orders
under Annexures-3 and 4 are hereby set aside. The Tractor and
Trolley seized shall be released in favour of the Petitioner
forthwith, if it is not required in connection with other forest
offence.
6. With the aforesaid observation and direction, the writ
petition is disposed of.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
bks Judge
