Dharmendra Chopra vs The State of M P Others

Hon''ble Shri Prashant Kumar Mishra, J.—The short question arising for determination in this writ petition is whether the Conservator of Forest is competent to register suo-motu appeal against the order passed by the competent authority i.e. Sub Divisional Officer (Forest), Bhanupratappur releasing the truck from confiscation. Facts of the case briefly stated are that on 28/06/1995 the truck belonging to the petitioner was seized as it was transporting illegal bamboos. After affecting seizure and recording statement of the witnesses forest offences case was registered and by its order dated 31/07/1995 (Annexure P/3) the competent authority concluded that the truck was not found involved in transportation of illegal bamboos.

When the matter thus stood concluded the Conservator of Forest registered suo-motu proceeding and suspended the orders passed by the competent authority. By the impugned order Annexure P/1 passed on 09/09/1995 the Conservator of Forest has observed that separate order shall be passed after making necessary enquiry.

Learned counsel for the petitioner would submit that there is no provision in the Forest Act under which appeal can be preferred against release of a truck in confiscation proceedings, therefore, the impugned order deserves to be set-aside as it is without jurisdiction.

On the other hand, learned State counsel has supported the impugned order.

Section 52-A (1) (2) and (3) of Indian Forest Act are reproduced hereunder for ready reference :-

52-A. Appeal against order of confiscation.- (1) Any person aggrieved by an order of confiscation may, within thirty days of the order, or if fact of such order has not been communicated to him, within thirty days of date of knowledge of such order, prefer an appeal in writing, accompanied by such fee and payable in such form as may be prescribed, and by certified copy of order of confiscation to the Conservator of Forests (hereinafter referred to as Appellate Authority) of the forest circle in which the forest produce, has been seized.

(2) The Appellate Authority referred to in sub-section (1), may, where no appeal has been preferred before him, "suomotu" within thirty days of date of receipt of copy of order of confiscation by him, and shall on presentation of memorandum of appeal issue a notice for hearing of appeal or, as the case may be, of "suomotu" action to the officer effecting seizure and to any other person (including appellant, if any) who in the opinion of the Appellate Authority, is likely to be adversely affected by the order of confiscation, and may sent for record of the case.

Provided that no formal notice of appeal need be issued to such amongst the appellant, officer effecting seizure and any other person likely to be adversely affected as aforesaid, as may waive the notice or as may be informed in any other manner of date of hearing of appeal by the Appellate Authority.

(3) The Appellate Authority shall send intimation in writing of lodging of appeal or about "suomotu" action, to the authorised officer.

On perusal of the above quoted provision it would appear that the power conferred under sub Section (2) of Section 52A on the appellate authority to register suo- motu appeal is against an order of confiscation and there is no power to register suo-motu appeal when there is an order by the competent authority releasing the vehicle at the end of proceeding.

An appeal is a creature of statute and this power is conferred under the statue itself. The appellate authority cannot exercise such power in a contingency under which appeal is not prescribed. In the matter of Rajkishore Mohanty Vs. State of Orissa and Others, dealing with similar situation the Orissa High Court held that the Conservator of Forest should have exercised the power either suo-motu or on an application in case where order of confiscation is made by authorized officer and when the forest officer has ordered release of the seized goods/vehicle on payment of fine, it is an order of non-confiscation hence appeal was not maintainable before the Conservator of Forest.

Similar view has been taken by the M.P. High Court in the matter of Umashankar Usrete Vs. State of Madhya Pradesh,

In view of the above, the Conservator of Forest was not justified and in fact he has no jurisdiction to initiate suo-motu proceedings against an order passed by Sub Divisional Officer (Forest) releasing the truck/bamboos from confiscation. Consequently, the writ petition deserves to be and is hereby allowed. The impugned order is set-aside.