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Judgment
This review petition is filed under Order 47, Rule 1 read with Section 151 CPC praying this Court to review order in Writ Petition No.4858 of 1997 dated 21-3-1997, contending that the learned Judge was pleased to dispose of the writ petition at the admission stage directing respondents to release lorry bearing No.APQ 7568 including release of timber which was involved in a forest offence. While disposing of the above said writ petition, at the admission stage, it was not brought to the notice of the learned Judge about the provisions of Section 59(2) (iii) of the A.P. Forest Act (hereinafter referred as ''The Act'') and also Rules 5 and 8 of the A.P. Forest Offences (Compounding and Prosecution) Rules, 1969 (for short ''The Rules''). Rule 5 of the Rules authorises the offender/ accused to express his willingness to have offence compounded by giving compounding statement as provided under Form-D and Rule 8 consequently contemplates passing of the order by the compounding authority in accordance with the provisions of Section 59(iii) on being satisfied about the undertaking given by the offender/ accused as specified in Rule 5 by levying compounding fee and it also authorises the compounding authority to seize the forest produce and forfeit the same to the State Government. The order of the learned Judge is to the following effect :
"Heard the learned Counsel for the petitioner and the learned Government Pleader for Forests.
In this case, Ihe petitioner''s lorry bearing No.APQ 7568 was seized on 23-3-1996 for the alleged offence of carrying teak logs worth Rs. 72,872/-. On 26-4-1996, the offence was compounded. The petitioner preferred an appeal before the 2nd respondent which was dismissed on 30-7-1996. The petitioner denied of having made any statement for compounding the offence. His contention is that his signatures were taken by the authorities for the purpose of releasing the vehicle, but the signatures were used for the purpose of preparing a memo for compounding the offence. This explanation, was not accepted by the appellate authority.
Whether the petitioner has signed the letter for compounding the offence voluntarily or under compulsion cannot be gone into by this Court. Therefore, I cannot accept the contention of the petitioner that he was compelled to sign the statement.
However, Sri P. Prabhakar Reddy, the learned Counsel for the petitioner submits that compounding at 1 + 2 times is disproportionate and harsh for the petty offence alleged against the petitioner.
Having regard to the circumstances, the penalty is reduced from 2 times to 1 time. Therefore, the petitioner has to pay 1+1 time and accordingly the lorry together with cement bags and timer shall be released to him. The writ petition is disposed of accordingly."
A perusal of the order clearly shows that the learned Judge while disposing of the writ petition reduced the quantom of compounding fee as assessed by the compounding authority making it to half and further directed that the lorry together with cement bags and timber shall be released to the petitioner. Learned Government Pleader for Forest appearing for review petitioner contended that the learned Judge ought not to have disposed of the writ petition at the admission stage insofar as the consequences arising there from particularly directing the release of timber which is a forest produce and the same cannot be released inasmuch as the compounding authority while compounding the offence clearly indicated in order bearing No.6/C/95-96-B dated 26-4-1996 that the seized forest produce is forfeited to the State as per Form-E under Rule 8 of the Rules and it is further directed that on receipt of payment of compounding fee, the empty lorry be released together with 60 cement bags in favour of the owner Ailala Sathalah S\\o Ashalu. The above said order is in confirmity with Section 59(iii) and Rule 8 of the Rules, 1969 This aspect was not noticed by the learned Judge while disposing of the writ petition.
Initially, the writ petition was filed by the owner of the lorry contending that the lorry in question was not involved in any forest offence and that he has not given any compounding statement as per Rule 5 of the Rules which is prescribed in Form-D and his thumb impression was obtained on a blank proforma. It is further contended that the compounding fee assessed by the compounding authority is unjust and unreasonable. However, the learned Judge has rightly observed that the said aspect cannot be a ground to agitate in a writ jurisdiction and the allegation with regard to compounding statement made by the petitioner also cannot be agitated in writ jurisdiction and the questions of fact are to be ascertained before appropriate Forum. However, the learned Judge while disposing the writ petition has exercised his equitable jurisdiction and reduced the compounding tee making it as half.
Originally the compounding authority has passed the order vide Proc.No.6/ C/95-96-B, dated 26-4-1996. Aggrieved by the said order the writ petitioner has preferred an appeal to the Appellate Authority. The Appellate Authority after calling for a report and the entire record his confirmed the orders passed by primary authority and accordingly dismissed the appeal preferred by the petitioner.
Learned Government Pleader for Forest has produced the entire record relating to the controversy in question. I have perused the entire record and the brief history of the case is naratted as under:
On 23-3-1996 at about 4.15 a.m the Forest Range Officer, Birsaipet intercepted lorry bearing No. APQ 7568 and on inspecting the same found 28 illegal teak logs not having passed hammer and valid permit hidden below the cement bags. A case was registered under Sections 20(e), 29 and 44 of the A.P.Forest Act and the vehicle was seized along with teak and cement bags. The accused confessed the offence and the confessional statements made by the accused is a part of the record.
A notice vide RC No.l384/95-S2, dated 23-3-1996 was issued asking the accused why the vehicle bearing No.APQ 7568 along with the timber involved in the forest offence should not be confiscated to the Government and an opportunity of being heard was given by fixing the date of enquiry as 9-4-1996. The notice was received by the concerned persons/accused but only cleaner of the lorry in question attended the enquiry and the other persons had not attended the enquiry. Another notice was issued to the concerned persons filing the date of enquiry as 22-4-1996 and the concerned persons choosen not to attend the enquiry.
As the owner of the vehicle failed to attend the enquiry on the basis of the report submitted by the F.R.O., Birsaipet, dated 23-3-1996, it was found that the case is fit to be tried u/s 59 of A.P. Forest Act, hence the trial u/s 44 is dropped.
The writ petitioner Ailala Sathaiah has confessed the commission of offence and gave a compounding statement prescribed in Rule 5 in Form-D stating that he is ready and willing to pay the compound fee as per Rules in the above offence. Accordingly, the offence was compounded and a compounding fee of Rs.2,18,616.00 was fixed and the illicit teak timber 28/5.144 cmt. is forfeited to the State. After passing of the order by the compounding authority, several notices and opportunities were given to the writ petitioner to pay the amount, but the writ petitioner failed to pay the said amount. However, an appeal was filed before the Conservator of Forest and when the matter is pending before the Conservator of Forest, the writ petitioner approached this Court by a Writ Petition No. 15449 of 1996 praying for a writ of mandamus directing the respondents to release the lorry bearing No.APQ 7568. The learned single Judge was pleased to dispose of the said writ petition by order dated 7th August, 1996 directing the second respondent therein to dispose of the application filed by the petitioner within a period of two weeks from the date of receipt of copy of the said order. However, the appellate authority on 30-7-1996 itself i.e., prior to the date of disposal of the above writ petition has passed an order vide Rc.No.3201/96/M3 confirmed the orders of Primary Authority dated 26-4-1996 and dismissed the appeal.
With the above factual background of the case, learned Government Pleader contends that there is an error apparent on the fact of record and argued that if the said order is allowed to stand, it will occasion failure of justice and relied upon on a judgment in Govt. of A.P. Vs. Dinde Kanakamma and another, . It is further stated that the forfeiture of forest produce in favour of the State as per Section 59(iii) of the Act and Rule 8 of the Rules was not brought to the notice of the learned Judge at the time of disposing of the writ petition at the admission stage It is true that the learned Judge ought not to have disposed of the writ petition at the admission stage without giving an opportunity to the Government Pleader to put-forth his case and to file a counter affidavit for an effective adjudication.
The record produced by the learned Government Pleader for Forest clearly demonstrate that the petitioner was given ample opportunity to appear before the compounding authority but the petitioner has not availed the same. The order of compounding of the offence was passed as the writ petitioner has agreed for compounding of the offence and to pay the compounding fee. The writ petitioner has also filed an appeal against the order of compounding authority and as stated above, the appeal was dismissed by the appellate authority. The present writ petition is filed contending that the petitioner has not furnished any compounding statement as prescribed under the Act and alleging that his thumb impression was obtained on a blank paper. The learned Judge has rightly observed that the same cannot be a subject matter of the writ petition and has to be agitated before the appropriate Forum having jurisdiction.
The present review petition is filed aggrieved by the order directing the release of the forest produce involved in the forest offence. The learned Government Pleader for Forest submitted that the learned Judge ought not to have directed for the release of the timber which is a forest produce and involved in an forest offence. It is argued that the release of the forest produce is against the provisions of Section 59(iii) of the Act and Rule 8 of the Rules. It is argued that the order forfeiting the timber in question in favour of the State is in-confirmity with the provisions of Section 59(iii) of the Act and Rule 8 of the Rules.
Having regard to the entire factual aspects of the case and after perusing the entire material and record on hand. I am of the opinion that there is an error apparent on the face of the record and the portion of the order of the learned Judge directing release of the timber in-question is hereby set-aside. Accordingly, the review petition is allowed only to the extent indicated above. No costs.