Anil Kumar Singh vs The State Of Bihar
2021 Latest Caselaw 1810 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.8472 of 2020
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Anil Kumar Singh, Son of Late Surya Keshwar Singh, Resident of Mohalla- Gaurakshani Sasaram, P.S.- Sasaram (Model), District- Rohtas

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Department of Environment and Forest, Government of Bihar, Patna

2. The Principal Secretary, Department of Environment and Forest, Government of Bihar, Patna

3. The District Magistrate, Rohtas at Sasaram

4. The Authorized Officer-cum-Divisional Forest Officer, Rohtas Forest Division, Sasaram, District- Rohtas

... ... Respondent/s ====================================================== Appearance :

For the Petitioner : Mr.Rajani Kant Singh, Advocate For the S t a t e : Mr. Sarvesh Kumar Singh, AAG-13 ====================================================== CORAM: HONOURABLE MR. JUSTICE MADHURESH PRASAD ORAL JUDGMENT Date : 26-03-2021

The writ application has been filed seeking quashing of

the order dated 28.04.2020 passed by the Principal Secretary to the

Government of Bihar, in the Department of Environment and

Forest, in Forest Revision Case No.5 of 2018, by which the

revision application has been dismissed, affirming the order dated

01.09.2017 of the District Magistrate, Rohtas in Forest

Confiscation Appeal Case No.50 of 2015. The order dated

05.10.2015 passed by the Authorized Officer-cum-Divisional

Forest Officer, Rohtas Forest Division, in Confiscation Case

No.158 of 2015(A) has also been assailed.

Patna High Court CWJC No.8472 of 2020 dt.26-03-2021

2. The brief factual background is that the Forester,

Darigaon, as per the prosecution report, was patrolling in

Basantpur protected forest area on 17.08.2015. He spotted two

vehicles laden with stone metal and boulders leaving the forest

area. He chased the trucks and informed the Station House Officer,

Nokha Police Station on mobile phone regarding the two trucks.

Accordingly the trucks were intercepted on Sasaram-Ara road with

the help of police team. 500 Cubic Feet (C.Ft.) stone metal was

found laden on the truck. It appeared to be converted/hand broken

stones. Since the hand broken stones were brought from the

Basantpur protected forest, the truck, bearing Registration No.JH-

02P-7074, laden with 500 C.Ft. stone metal was seized by the

Forester under Section 52(1) of the Indian Forest Act, 1927

(hereinafter referred to as "the Act") for violation of Sections 33,

41 and 42 of the Act. Forest Case No.77F/15 was thus instituted.

The Range Officer of Forests, Sasaram Forest Range requested the

Authorized Officer-cum-Divisional Forest Officer (Respondent

No.4) by his communication dated 20.08.2015 to initiate

confiscation proceeding against the seized vehicle and forest

produce as per Section 52(3) of the Act. Confiscation Case No.158

of 2015 thus came into existence. Intimation regarding the same

was communicated to the Chief Judicial Magistrate, Rohtas as per Patna High Court CWJC No.8472 of 2020 dt.26-03-2021

Section 52(4)(a) of the Act. Notice as contemplated under Section

52(4)(b) and (c) of the Act was served against unknown by the

Respondent No.4 under communication dated 10.09.2015

(Annexure R/2 to the counter affidavit.)

3. Petitioner replied to the said notice on 11.09.2015.

He appeared in the hearing of the case. He was afforded hearing.

By order dated 05.10.2015, the Divisional Forest Officer

confiscated the truck, bearing Registration No.JH-02P-7074, and

500 C.Ft. stone.

4. The petitioner filed an appeal before the Appellate

Authority-cum-District Collector, Rohtas. The Appeal Case,

bearing Case No.50 of 2015, was rejected on 01.09.2017.

5. Petitioner thereafter availed the remedy of revision.

Forest Revision Case No.05 of 2018 was filed before the

Revisional Authority-cum-Principal Secretary to the Government

of Bihar, in the Department of Environment and Forest. After

hearing the parties, Revision was also rejected under order dated

28.04.2020, upholding the appellate authority's order dated

01.09.2017 and confirming the order of confiscation dated

05.10.2015 passed by the Authorized Officer.

6. The petitioner's counsel has submitted that the

petitioner carries on the business of transportation. At the time his Patna High Court CWJC No.8472 of 2020 dt.26-03-2021

truck was seized, it was under the control of the Driver and the

petitioner had no knowledge as to what was the contents being

transported on the truck in question. Stone chips were loaded on

17.08.2015 by Vijay Singh of Bikramganj from M/s Aman Stone

Chips at Mandeya in Chhatarpur, Palamu which lies in the State of

Jharkhand. While the truck was en route its destination, it was

illegally seized by Nokha police.

7. He submits that the truck was seized nearly 100 Kms.

away from the protected forest on the Sasaram-Ara road and not in

the protected forest area. Further, stone is not a forest produce. In

view of these facts, he submits that the forest authorities had no

jurisdiction to seize the truck from the road, that also when the

laden stone was not a forest produce, rather purchased from Aman

Stone Chips in the State of Jharkhand, for which the petitioner had

a valid Challan. He has placed reliance on decision of this Court in

the case of Alok Kumar Singh vs. State of Bihar, reported in

2019(4) PLJR 1026, more specifically paragraphs 6 to 9 of the

said judgment in support of his contention that the stone chips are

not forest produce and that the same is a minor mineral, mining of

which is regulated by the provisions of the Bihar Minor Mineral

Concession Rules, 1972. He has also relied upon decision of the

Apex Court in the case of the Divisional Forest Officer, South Patna High Court CWJC No.8472 of 2020 dt.26-03-2021

Kamrup Division, Gauhati and others v. Moolchand Saraugi

Jain, reported in AIR 1971 Supreme Court 694, on the same

point. This decision has been followed by the Gauhati High Court

in the case of Bejiram Ingty v. State of Assam, which is reported

in AIR 1982 Gauhati 88, which also has been relied upon by the

petitioner's counsel.

8. This Court would find that the facts of the case in

the Divisional Forest Officer v. Moolchand Saraugi Jain (supra)

are that the Divisional Forest Officer had invited tenders for the

purchase of rights to quarry stone from certain areas. The

respondent therein, submitted a tender and offered a particular rate.

The tender was accepted for minimum quantity of 1,25,800 C.Ft.

of stone allotted to the respondent out of the quarry. He was

required to pay Rs.31,250/-. Intimation regarding such acceptance

was duly communicated to the respondents. Some dispute was

raised by a third party, which led to stay of the tender for a period

of about three months. The respondent then declined to accept the

settlement of the quarry. Said denial was considered to be breach

of the terms of the sale notice. The amount of Rs.31,250/- was

quantified for the minimum quantity 1,25,800 C.Ft. of stone

allotted to the respondent out of the quarry at the rate of Rs.5.25

per rupee of royalty and was sought to be recovered for alleged Patna High Court CWJC No.8472 of 2020 dt.26-03-2021

breach of the terms of the sale notice as an arrear of land revenue

under Assam Forest Regulation VII of 1981. Considering the

provisions in the Rule, the Apex Court has held as follows :

"The Rule in our judgment does not apply to recovery of the amount alleged to be due for failure to carry out the obligations of the tender by proceedings under the Assam Forest Regulation 1891. It is again difficult to hold that "stone" is forest produce withing the meaning of the Act. In any event the Rule does not give rise to any liability to pay a sum of money. It merely imposes a limitation upon the power of the officers of the Forest Department to grant leases in respect of certain forest produce. The lease may not be granted except in accordance with the general or special orders of the Conservator who alone is empowered to authorise a sale in respect of such a lease. It is a rule relating to the exercise of power to grant leases. The High Court was, in our judgment, right in observing that the amount of damages for breach of the terms of the sale notice is not an amount due under the Regulation, or rule 10 made thereunder."

9. This judgment of the Apex Court is on the issue

whether amount of alleged damages for breach of the terms of sale

notice, was an amount due under the Regulation or Rule made

thereunder, for the purposes of recovery as an arrear of land

revenue, or not. The said judgment is not an authority on the point

that hand broken stone chips recovered from the petitioner's truck

is not a forest produce/prohibited under Section 33(b) of the Forest

Act inviting penalty in terms of Section 33.

Patna High Court CWJC No.8472 of 2020 dt.26-03-2021

10. It was the same issued which fell for consideration

before the Gauhati High Court in the case of Bejiram Ingty

(supra). It was in the context of the Assam Forest Regulation or

Rules framed thereunder that the Court was considering whether

alleged arrear, for purchase or breach of the terms of sale of forest

produce, specifically "stone", could be recovered as an arrear of

land revenue.

11. So far as the decision rendered in the case of Alok

Kumar Singh (supra) is concerned, this Court must take notice of

the facts of that case, which can be gathered from the judgment.

The truck in that case was going towards Sasaram-Ara road laden

with stone chips purchased from the business premises of one M/s

Jai Maa Bhawanti Construction in Jharkhand, for which valid

transport Challan was issued and had been produced. Thus, it was

pleaded by the petitioner that the stone chips was not a forest

produce having been purchased from the said M/s Jai Maa

Bhawanti Construction and in respect of which a valid transport

Challan was issued.

12. From bare perusal of the judgment, it is apparent

that in the said case there is no plea on behalf of the State that the

truck was seen within the forest are laden with stone, or leaving

any forest area laden with the stone chips and that the same had Patna High Court CWJC No.8472 of 2020 dt.26-03-2021

subsequently been intercepted pursuant to a chase on the road, as

are the facts in the instant case. It was in this context that this

Court in the case of Alok Kumar Singh (supra) has observed as

follows:

"7. The stone chips admittedly are not forest produce rather it comes under minor minerals. Section 40(2) of Bihar Minor Mineral Concession Rules, 1972 provides penalty for unauthorized extraction and removal of minor minerals."

13. In the instant case, the fact stated in the forest case

is that the Forester has seen that stone chips were laden on the

truck, while it was in the protected forest from where it had fled

away. It was chased by the Forester and only after mobile phone

communication with Nokha Police Station on Sasaram-Ara road, it

was intercepted. It is also the case of the respondents that no

Challan was produced when the truck was intercepted and seized.

14. On these basic facts, the instant case is

distinguishable from the case of Alok Kumar Singh (supra). The

Forester had seen the truck in question in Basantpur "Protected

Forest". It is the specific stand of the State in its supplementary

counter affidavit that there is no approved and valid stone mining

lease operational in the said protected forest or any of the

protected forests in the forest area of Rohtas Forest Division. Patna High Court CWJC No.8472 of 2020 dt.26-03-2021

15. Apart from that, the State has also placed on record

a Notification dated 18.09.1968 issued under Section 30(c) of the

Act at Annexure R/5 of the supplementary counter affidavit filed

on behalf of Respondent Nos.1 to 4. By the said notification

quarrying of stone has been prohibited within the protected forests

in the District of Shahabad from where the truck in question had

fled away laden with the hand broken stones. Such prohibition is

in accordance with Section 30(c) of the Act, which reads as

follows:

"(30). Power to issue notification reserving trees, etc.-- The [State Government] may, by notification in the Official Gazette,--

(a).................................................

(b)................................................

(c) prohibit, from a date fixed as 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."

16. These averments made in the supplementary

counter affidavit have not been denied or responded to by the

petitioner though copy of the same has been served on the

petitioner's counsel on 02.03.2021.

Patna High Court CWJC No.8472 of 2020 dt.26-03-2021

17. The petitioner otherwise has not raised any

procedural infirmity in the confiscation proceedings, appellate

order or the revisional order, all of which have been assailed in the

instant proceedings.

18. The submission that stone is not a forest produce

under the Act is not supported by the decision, relied upon by the

petitioner's counsel. The State Government has duly prohibited

quarrying of stone by a notification dated 18.09.1968 issued under

Section 30(c) of the Act. The facts leading to the confiscation is

that the stone chips was being carried by the petitioner's truck

from within the forest area. Upon chase, the truck has been

intercepted by Nokha Police on Sasaram-Ara road and no valid

Challan in respect of the stone chips was produced by the

petitioner or his Driver at the time of seizure of the truck in

question.

19. The notification dated 18.09.1968 issued under

Section 30(c) of the Act, when considered with the provisions

contained in Section 2(4)(b)(iv) of the Act in the background,

make it abundantly clear that the fact that the hand broken stones

was being brought from a protected forest, leaves no room for

doubt to consider that the same would come within the expression

"forest produce". Section 2(4)(b) (iv)of the Act reads as follows :

Patna High Court CWJC No.8472 of 2020 dt.26-03-2021

2. Interpretation clause.- In this Act, unless there is anything repugnant in the subject or context,--

(4) "forest-produce" includes--

(a) .....................................

(b) the following when found in, or brought from, a forest, that is to say,--

(i) trees and leaves, flowers and fruits, and all other parts or produce, not hereinbefore mentioned, of trees,

(ii) plants not being trees (including grass, creepers, reeds and moss), and all parts or produce of such plants,

(iii) wild animals and skins, tusks, horns, bones, silk cocoons, honey, and wax, and all other parts of produce of animals, and

(iv) peat, surface soil, rock and minerals (including limestone, laterite, mineral oils and all products of mines or quarries);"

20. In the circumstances, there is no occasion for this

Court to interfere with the order passed in Confiscation Case

No.158 of 2015(A),which is dated 05.10.2015 or the appellate

order dated 01.09.2017. The revisional order dated 28.04.2020 also

does not require any interference.

21. The writ petition therefore is dismissed.

(Madhuresh Prasad, J) PNM AFR/NAFR A.F.R.

CAV DATE                N.A.
Uploading Date          27.03.2021
Transmission Date       N.A.