Bhai Jamal Khalid Hussein vs State Of Gujarat

Vipul M. Pancholi, J

By way of this petition, which is filed under Article 226 of the Constitution of India, petitioner has challenged the order dated 28.12.2018 passed by

the respondent No.2 by which the vehicle of the ownership of the petitioner has been confiscated. Petitioner has also prayed that the respondents be

directed to release the vehicle in question of the petitioner forthwith.

Heard learned advocate Ms. Sangeeta Pahwa for the petitioner and learned Assistant Government Pleader Mr. K.M.Antani for the respondents.

Learned advocate for the petitioner submitted that petitioner is the owner of tempo bearing registration No.GJ-6-W-9646. The petitioner was plying

the said tempo on hire through his driver for the purpose of transportation. It is further submitted that the driver engaged by the petitioner had

accepted the trip to village Unchapan for transporting the kher wood without the knowledge and consent of the petitioner. The concerned respondent

authority therefore seized the said vehicle on 23.09.2017 and thereafter issued the notice under Section 39(1)(d) of the Wildlife Protection Act, 1972.

Petitioner, therefore, made a representation to the respondent No.2 for release the vehicle in question on presentation of bond. However, the said

representation was not considered by the concerned respondent authority and therefore petitioner filed Special Civil Application No.11455 of 2018 for

release of the tempo and for quashing and setting aside the seizure order dated 23.09.2017. This Court disposed of the said petition vide order dated

03.10.2018 by directing the respondent authority to decide the representation made by the petitioner.

It is further submitted by learned advocate for the petitioner that though this Court has given direction to the respondent to decide the representation

made by the petitioner for release of the vehicle, the respondent authority passed the impugned order by which the vehicle in question owned by the

petitioner has been confiscated.

Learned advocate for the petitioner would challenge the said order by submitting that before passing the order of confiscation, the respondent

authority had not issued mandatory notice under Section 61(B) of the Forest Act, 1927. It is also submitted that the vehicle was seized under the

Wildlife Protection Act, 1972 and the notice was also issued under the said Act, in spite of that, the order of confiscation was passed under the Forest

Act, which is not permissible. It is further submitted that the impugned order has been passed without following the principles of natural justice and

without issuance of notice to the petitioner and therefore the impugned order passed by the respondent authority be quashed and set aside.

5.1. Pursuant to the affidavit-in-reply filed by the respondent authority, learned advocate for the respondent submitted that though alternative remedy

of filing an appeal under Section 61(D) of the Forest Act is available to the petitioner, in view of the fact that the respondent authority has violated the

principles of natural justice, this petition under Article 226 of the Constitution of India is filed before this Court.

On the other hand, learned Assistant Government Pleader Mr. K. M. Antani appearing for the respondent, at the outset, submitted that the

petitioner can file an appeal under Section 61(D) of the Forest Act against the impugned order dated 28.12.2018 passed by the respondent No.2. Thus,

when the efficacious statutory alternative remedy is available to the petitioner, this Court may not entertain this petition, which is filed under Article

226 of the Constitution of India.

Learned Assistant Government Pleader further submitted that the petitioner has suppressed material fact by not disclosing the relevant and

important facts before this Court. From the affidavit-in-reply filed by the respondent authority it is pointed out by learned Assistant Government

Pleader that respondent authority had issued various notices through Registered Post AD to the petitioner under the provisions of the Forest Act. In

fact, on 11.10.2018, notice under Section 61(A)(2) of the Forest Act was also issued to the petitioner by RPAD. The said notice was duly served to

the petitioner. Learned Assistant Government Pleader, at this stage, has referred the said notice, copy of which is placed on record at page 75 and

acknowledgment receipt, copy of which is placed on record at page 76. Learned AGP thereafter referred the statement given by the driver of the

petitioner, copy of which is placed on record at page 77 and the statement given by the present petitioner which was recorded on 12.10.2018, copy of

which is placed on record at page 79. From the documents annexed with the affidavit-in-reply, learned AGP submitted that before passing the

impugned order, the respondent authority has followed the procedure prescribed under the Forest Act and they have also followed the principles of

natural justice. Thus, it is not correct on the part of the petitioner to contend that without issuance of notice under the Forest Act, impugned order has

been passed by the respondent authority. It is, therefore, urged that without going into the further merits of the present case, on the ground of

availability of alternative statutory remedy, this Court may not entertain this petition.

Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it emerges that the vehicle in

question of the ownership of the petitioner was seized by the concerned authority when the said vehicle was found transporting kher wood without

pass and permit. Therefore, the FIR came to be registered on 23.09.2017. Thereafter, as contended by learned AGP, which is supported by the

documents produced along with the affidavit-in-reply, it is revealed that various notices were issued to the petitioner under the provisions of the Forest

Act for confiscation of the vehicle in question. Notice dated 11.10.2018 was also issued to the petitioner, copy of which is placed on record at page

From the acknowledgment slip produced at page 76 it is further revealed that the said notice is duly received by the petitioner. Signature of the

petitioner is also found on the said acknowledgment slip. It further transpires from the document produced at page 79 i.e. the statement given by the

petitioner that on 12.10.2018 petitioner has given the statement before the respondent authority. Petitioner has also put his signature on the said

statement.

8.1. At this stage, it is pertinent to note that learned advocate for the petitioner contended on the basis of the affidavit-in-rejoinder filed by the

petitioner that petitioner has disputed his signature found on the acknowledgment slip as well as his signature put on the statement of the petitioner,

which is alleged to have been recorded on 12.10.2018.

8.2. If the petitioner is disputing his signature found on acknowledgment slip as well as his statement, he can raise these contentions before the

Appellate Authority. This Court while exercising powers under Article 226 of the Constitution of India cannot go into this aspect.

Thus, from the material placed on record, prima facie, it is clear that prior to passing of the impugned order by the respondent authority notice under

Section 61A(2) of the Forest Act was issued to the petitioner and statement of the petitioner was also recorded. Thus, prima facie, it cannot be said

that the impugned order has been passed without following the procedure prescribed under the law or without following the principles of natural

justice. However, it is open for the petitioner to take contentions before the Appellate Authority about his signature.

At this stage, provisions contained under Section 61(D) of the Forest Act is required to be referred to. Section 61(D) of the Forest Act provides as

under:

â€61D. Appeal.â€"Any person aggrieved by any order under section 41, 61A or section 61C may, within forty-five days from the date of

communication to him of such order, appeal to the Sessions Judge having jurisdiction over the area in which the property to which the order relates has

been seized and the Sessions Judge shall, after giving an opportunity of being heard to the appellant and the authorised officer or the officer specially

empowered under section 61C, as the case may be, pass such order as he may think fit confirming, modifying or annulling the order appealed against.

(2) An order of the Sessions Judge under sub- section(1) shall be final and shall not be questioned in any Court of law.â€​

From the aforesaid provisions, it is clear that against the impugned order passed by the respondent authority, petitioner can file an appeal before

the Sessions Court under Section 61(D) of the Forest Act and therefore when the statutory alternative remedy is available, this Court is not inclined to

exercise powers under Article 226 of the Constitution of India and more particularly when the petitioner has raised the dispute regarding his signature

on acknowledgment slip and on his statement. This Court cannot go into the aspect as to whether the signature of the petitioner is correct or not. The

said aspects can be examined by the concerned appellate authority.

In view of the aforesaid discussion, petition is disposed of. However, liberty is reserved to the petitioner to file an appeal before the appellate

authority. As and when the said appeal is preferred, the appellate authority shall decide the said appeal on its own merits in accordance with law

without being influenced by the present order.