Orissa High Court
(An Application Under Articles 226 And ... vs State Of Odisha And Others .... Opp. ... on 24 June, 2024
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
Signature Not Verified
Digitally Signed
Signed by: ROJALIN NAYAK
Designation: JUNIOR STENOGRAPHER
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 26-Jun-2024 16:56:43
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C). NO.12219 OF 2019
(An application under Articles 226 and 227 of the
Constitution of India)
*****
Sanjaya Kumar Padhy .... Petitioner
-versus-
State of Odisha and others .... Opp. Parties
Advocate for the Parties :
For Petitioner : Ms. Deepali Mahapatra, Advocate
For Opposite Parties : Mr. Swayambhu Mishra,
Additional Standing Counsel
CORAM:
JUSTICE K.R. MOHAPATRA
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Heard and disposed of on 24.06.2024
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JUDGMENT
K.R. Mohapatra, J.-
1. This matter is taken up through hybrid mode.
2. Judgment dated 5th July, 2019 (Annexure-6) passed by
learned District Judge, Ganjam in F.A.O. No.02 of 2019 is under
challenge in this writ petition, whereby dismissing the appeal under
Section 56 (2-e) of Odisha Forest Act, 1972, (for brevity 'the Act')
learned District Judge confirmed the order dated 5th December, 2018
(Annexure-5) passed by the Authorized Officer-cum Assistant
Conservator of Forest, Ghumusar South Division, Bhanjanagar,
Ganjam in OR Case No.54 of 2018-19 of Aska Range confiscating
the Tractor and Trolley of the Petitioner.
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 26-Jun-2024 16:56:43
3. Ms. Mahapatra, learned counsel submits that the Petitioner
is the registered owner of the Tractor and Trolley bearing
Registration No. OD-32-3447 and OD-32-3448 respectively (for
brevity 'the offending vehicles') loaded with blasting stones
measuring 3 cum. along with a mango log of 2.95 cft. The offending
vehicles were seized by the forest officials from Compartment No.
28 of Badagada "C" Undemarcated Protected Forest (UDPF) near
village Laugada under Seragada Block. It was alleged that on arrival
of the Revenue and Forest Staffs, the driver of the offending vehicle
fled away. The materials were loaded from the Forest Block,
Badagada UDPF area. On the aforesaid allegation, confiscation
proceeding was initiated under Section 56 of the Act and order of
confiscation was passed by the Authorized Officer-cum-Assistant
Conservator of Forest, Ghumusar South Division on 5th December,
2018 (Annexure-5). Assailing the same, the Petitioner preferred
F.A.O. No.02 of 2019, which was also dismissed vide order under
Annexure-6. Hence, this writ petition has been filed.
4. It is submitted by Ms. Mahapatra, learned counsel for the
Petitioner that there was no notification declaring the area, from
which the offending vehicles of the Petitioner were seized, as
Undemarcated Protected Forest. In absence of such notification
declaring the area to be UDPF, initiation of the proceeding under the
Odisha Forest Act for violation of the provisions of the Act and
Rules framed thereunder is per se illegal and vitiated. It is further
submitted that mango log was never loaded on the offending vehicles
at the instance of the Petitioner. On the instruction of the Tahasildar,
the RI loaded the mango log on the offending vehicles to attract the
provision under Section 56 of the Act. Although learned District
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 26-Jun-2024 16:56:43
Judge categorically held that no notification showing declaration of
the area to be UPDF was made, but observing that it was the
consistent evidence of all the witnesses that the spot has been
notified to be a protected forest passed the impugned order under
Annexure-6. In absence of any notification, oral evidence of the
official witnesses was relied upon by learned District Judge to attract
the provision under Section 56 of the Act. She, therefore, submits
that the impugned orders under Annexure 5 and 6 are illegal and are
liable to be set aside.
5. She drew attention of this Court to Rule 160 of the Odisha
Forest Code, 2020 (for brevity 'the Code') read with Section 34 of
the Act and submits that a notification is mandatory to declare an
area to be a protected forest, which may be a demarcated or
undemarcated forest. Thus, in absence of such notification, entire
proceeding is vitiated and is liable to be set aside.
6. Mr. Mishra, learned Additional Standing Counsel
vehemently objects to the same. It is his submission that in respect
of Undemarcated Protect Forest, no notification is necessary. In such
case, the forest growth is being managed by the forest officials, but,
the land remains under the control of the Revenue Department. They
only maintain a register with regard to the said lands and leases, if
any made, in respect of those lands. Though, no such register was
placed either before the Authorized Officer or before learned District
Judge, but, taking into consideration the overwhelming materials on
record, the Authorised Officer as well as Appellate Court arrived at a
conclusion that the offending vehicles are liable to be confiscated.
Only because a different view may be possible by production of
those registers, this Court should not interfere with the impugned
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 26-Jun-2024 16:56:43
orders, which is based on material available on record. Further no
such plea was taken by the Petitioner either before the Authorized
Officer or before learned Appellate Court. He, therefore, prays for
dismissal of this writ petition.
7. Heard learned counsel for the parties.
8. Perused the materials on record.
9. Rule 160 of the Odisha Forest Code reads as under:
"160. Protected Forests.
Protected Forests in the State are Government lands not
included in Reserved Forests but over which, the State
Government have notified under Section 33 of the Orissa
Forest Act that provisions of Chapter IV of the Act are
applicable or over which the provisions of the said chapter
have been declared to be applicable under section 90 of the
said Act. This includes all lands at the disposal of Government
to which the provisions contained in Chapter III of the Madras
Forest Act, 1882 were applicable immediate prior to coming
of the Orissa Forest Act 1972, and all Khesra Forest, Village
Forests or Protected Forests or Forest other than reserved
forests in whatever name designed or locally known in the
merged ex-State territories as provided under Section 81 (4) of
the Act.
The protected forests are classified into Demarcated Protected
Forests and Undemarcated Protected Forests. The
demarcated protected forests are those which have been
declared to be closed under Section 34 (c) of the Orissa Forest
Act. All Reserved lands declared under Madras Forest Act are
also termed as Demarcated Protected Forests. These are
under the management of the Forest Department. All other
protected forests and all unreserved lands are termed as
undemarcated protected forests. Forest growth on the
undemarcated protected forests are under the management of
the Forest Department while the land is under the
management of the Revenue Department.
A register similar to the one prescribed in Rule 158 for
Reserved Forests will be kept for Demarcated Protected
Forests.
So far as the available data permit a register should also be
opened on the same lines for the undemarcated protected
forests and these should be kept up-to-date year to year after
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 26-Jun-2024 16:56:43
recording the leases granted therein for each protected forests
by the Revenue Department."
(emphasis supplied)
9.1. Section 34 of the Odisha Forest Act, 1972 reads as under:
"34. Power to issue notification reserving trees, etc- The State
Government may, by notification-
(a) declare any trees in protected forest to be reserved from a
date to be specified in the notification;
(b) prohibit, from a date to be specified as a aforesaid the
quarrying of stone, or the burning of lime or charcoal, or the
collection or subjection to any manufacturing process or
removal of any forest produce in any such forest, and the
breaking up or clearing for cultivation, for building, for
herding cattle or for any other purpose, of any land in any
such forest;
(c) declare that any portion of such forest as may be specified
in the notification shall be closed to grazing and removal of
any forest produce for such term as the State Government
think fit for the plantation and natural growth of the forest ;
Provided that in making a declaration under Clause (c) the
State Government shall have due regard to the grazing facility
of cattle."
10. On a conspectus of both the provisions, it is crystal clear
that a protected forest may be a demarcated protected forest or an
undemarcated protected forest. A notification to declare a forest to be
a protected forest has to be made by the State Government. In this
case, admittedly, there is no notification declaring the area, from
which the offending vehicles were seized to be a protected forest
(although undemarcated). Further, no register as required under Rule
160 of the Code was filed either before the Authorized Officer or
before learned Appellate Court to arrive at a conclusion that the spot
from which the offending vehicles were seized, was coming under
the Undemarcated Protected Forest.
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 26-Jun-2024 16:56:43
11. Ms. Mahapatra, learned counsel for the Petitioner relied
upon the case of Chandrasen Bag and Six others vs. State reported
in 1992(II) OLR 185, wherein it is held as under:
5. In order to appreciate the submissions made by the
learned counsel for the parties, it is relevant to refer to
Section 37 (1) (c) of the Act which reads as follows :
"37. Penalties for acts in contravention of notification Under
Section 34 or of Rules Under Section 36. -(1) Any person
who-
(a)..................
(b)..................
(c) contrary to any prohibition Under Section 34 breaks up
or clears for cultivation or any other purpose any land in any
protected forests or cultivate or attempts to cultivate any
such land in any manner: "
Apparently in order to have operation of Section 37 (1) (c)
there has to be prohibition in terms of Section 34. The said
section deals with powers to issue notification reserving
trees, etc. It is also apparent that Section 37 (1) (c) relates
only to protected forest. What is prohibited in terms of
Section 37 (1) (c) is breaking up or dealing for cultivation or
any other purpose any land in any protected forest or
cultivating or attempting to cultivate any such \and in any
manner. Section 33 deals with protected forest. The said
section prescribes that by notification the State Government
may declare the provisions of Chapter IV to be applicable to
any land which is not included in a reserved forest, but
which is the property of Government or over which the
Government have proprietary rights. Therefore, in order to
be declared a protected forest the land has to be one which is
not included in a reserved forest. Therefore, in the case of
unreserved forest a notification to declare the provisions of
Chapter IV applicable has to be issued, in terms of Section
34." (emphasis supplied)
12. She, therefore, submits that for any kind of protected forest,
a notification under Section 34 of the Act is mandatory. Contention
of Ms. Mahapatra, learned counsel appears to be correct. It appears
that learned District Judge while adjudicating the matter, has ignored
to consider the aforesaid legal aspect. It is further contended that the
mango log was loaded on the offending vehicle on the instruction of
Designation: JUNIOR STENOGRAPHER
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 26-Jun-2024 16:56:43
the Tahasildar. The said aspect was not looked into by learned
District Judge in its proper perspective while adjudicating the matter.
The statement of the Petitioner (D.W.1) regarding illegal
gratification of Rs. 50,000/- was disbelieved as there was no
corroboration to the same. Only because there was no corroboration
to the aforesaid statement of the Petitioner, it should not have been
discarded.
13. In view of the above, this Court feels that the matter
requires fresh consideration.
14. Accordingly, the impugned order under Annexure-6 is set
aside and the matter is remitted to learned District Judge, Ganjam for
fresh consideration of the appeal (FAO No.02 of 2019) giving
opportunity of hearing to the parties concerned.
15. This writ petition is accordingly disposed of.
16. Since the appeal is of the year 2019, steps shall be taken for
early disposal of the same.
Urgent certified copy of this judgment be granted on proper
application.
(K.R. Mohapatra)
Judge
High Court of Orissa, Cuttack
The 24th Day of 2024/Rojalin
