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Judgment
P. Sathasivam, J.—The petitioner has approached this Court to issue a writ or mandamus directing the third respondent to hand over the
vehicle bearing Registration No. KA. 01.182 seized by the second respondent in UDSTOR No. 28/93-94 dated 22.6.1993 to the petitioner.
The case of the petitioner is briefly stated hereunder: According to the petitioner, he is the legal owner of the vehicle, Tata Tempo, bearing
Registration No. KA. 01.182. He entrusted the vehicle on a hire purchase agreement dated 3.3.1992 to the fourth respondent. The higher
purchase agreement has been duly endorsed in the R.C. book of the vehicle. Along with the said hire purchase agreement a proposal from
agreeing to maintain the vehicle in good condition and not use it in any illegal or unlawful activity was executed by the fourth respondent. It is further
contended that the hire purchase agreement is for Rs. 1,87,000 and the same is payable in 30 monthly instalments. As per Clause 12 of the hire
purchase agreement, the hirer shall not use, permit or suffer the vehicle to be used for any purpose other than that prescribed in the proposal for
hire purchase except with the consent in writing of the owner. As per Clause 13, the vehicle being the property of the owner, shall not be subject
to any lien, charge of claim. As per Clause 14, if the hirer commits any default in payment of any instalment or fails to observe or perform any of
the conditions of the hire purchase agreement the petitioner has the legal right to seize and repossess the vehicle. The fourth respondent is a
registered owner, having been permitted to have Registration Certificate in his name for the convenience of his plying the vehicle. The petitioner
was given to understand that the said vehicle had been seized by the second respondent on 15.5.1993 in connection with the alleged offence u/s
21(d), (e) and (f) of the Tamil Nadu Forest Act on the allegation that the vehicle had been found loaded with sandalwood. It is further contended
that our of 30 hire instalments, the hirer paid only 7 instalments and a sum of Rs. 1,33,000 is still due from the hirer under the hire purchase
agreement. The petitioner is totally innocent with the alleged office committed by the fourth respondent or his men. Now, the petitioner came to
know that the said vehicle is going to be auctioned in public auction by the second respondent. Since no opportunity was given to the petitioner,
who being the legal owner, the steps taken by the respondents 1 to 3 are illegal. In such circumstance, he has approached this Court for necessary
relief stated above.
Respondents 1 to 3 filed a counter-affidavit disputing various averments made by the petitioner. The writ petition filed by the financier against the
respondents 1 to 3 is not maintainable. There is no provision in the Tamil Nadu Forest (Amendment) Act, 1992 (Tamil Nadu Act 44 of 1992) to
entertain the financier as a registered owner. The vehicle was seized on 15.5.1993 by the Tirupattur Ranger. The occupants of the vehicle fled
away from the scene of occurrence and hence nobody could be arrested. A case under S.T.O.R. No. 28/93-94 was registered and the vehicle
was seized as per the Rules of Tamil Nadu Forest (Amendment) Act, 1992. Since the vehicle is involved in sandalwood smuggling, it is liable to be
confiscated as per the Act. It is further contended that the Authorised Officer issued the show cause notice to the owner of the vehicle and also
made necessary publication in both Tamil and English dailies on. 27.11.1993 and confiscated the vehicle after giving adequate opportunity to the
fourth respondent, the registered owner of the vehicle bearing Registration No. KA. 01.182. The owner of the vehicle has filed W.P. No. 10899
of 1993 and the same is pending before this Court. As per the provisions of the Act, the financier cannot step into the issue between the authorised
officer and the registered owner of the vehicle. The petitioner is a stranger to the proceedings of the authorised officer for the purpose of issuing
show cause notice. The authorised officer after giving adequate opportunity to the fourth respondent, who is the registered owner, has order
confiscation of the vehicle on 22.12.1993. Since the confiscation order was passed, the vehicle becomes absolute property of the Government and
hence the writ petition is not maintainable.
The fourth respondent, even though received notice from this Court, has not chosen to contest the case either by filing a counter affidavit or by
engaging a counsel.
In the light of the above pleading; I have heard M/s. Surana and Surana, learned Counsel for the petitioner and Mr. Titus Jesudoss, learned
Additional Government Pleader (Forest) for the respondents 1 to 3.
The only point to be considered in this writ petition is whether the petitioner, who has advanced money for the purchase of the vehicle, Tata
Tempo, bearing Registration No. KA. 01.182 is entitled any notice at the hands of the respondents 1 to 3 in a proceedings initiated u/s 49(A) and
(B) of Tamil Nadu Forest Act?
The learned Counsel for the petitioner, submitted that in view of the hire purchase agreement executed by the fourth respondent in favour of the
petitioner and the necessary endorsement having been made in the Registration Certificate book, the respondents 1 to 3 ought to have issued
notice to the petitioner. He also submitted that in the absence of any notice to the petitioner, who is the legal owner of the vehicle KA. 01.182 the
confiscation order passed by the second respondent cannot be sustained. On the other hand, the learned Additional Government Pleader
appearing for respondents 1 to 3 submitted that as per Sections 49-A and 49-B of the Tamil Nadu Forest Act, the respondents 2 and 3 have
issued notice to the registered owner, fourth respondent herein and having satisfied with the mandatory provisions, there is no need to give notice
to the petitioner who has nothing to do with the action taken by respondent 2 and 3. I have carefully considered the rival submissions.
It is the contention of the petitioner that the vehicle Tata Tempo bearing registration No. KA. 01.182 has been entrusted with the fourth
respondent by executing hire purchase agreement. The hire purchase agreement was duly endorsed in the Registration Certificate book of the
petitioner. Along with the hire purchase agreement dated 3.3.1992, a proposal form agreeing to maintain the vehicle in good condition and not use
it in any illegal or unlawful activity was executed by the fourth respondent. The hire purchase agreement is for Rs. 1,87,000 and the same is
payable in 30 monthly hire instalments. As per the terms and conditions of the hire purchase agreement, the petitioner is the owner of the vehicle
and the fourth respondent is a mere hirer. If the fourth respondent pays all the hire instalments regularly and exercise the option of having the
vehicle of his own, then only he becomes the owner of the vehicle. As per Clause 12 of the hire purchase agreement, the hirer cannot use or permit
the vehicle to be used for any purpose other than that described in the proposal for hire purchase except with the consent in writing of the owner,
namely, the petitioner. As per Clause 13 of the said agreement, the vehicle being the property of the petitioner shall not be subjected to any lien,
charge or claim etc. As per Clause 14, if the hirer commits any default in payment of any instalment or fails to observe or perform any of the
conditions of the hire purchase agreement, the petitioner has legal right to retake the possession of the vehicle. The hirer had paid only 7 hire
instalments and failed any neglected to pay the rest of the instalments.
In the light of the above factual position, it is contended that when the vehicle was seized by the second respondent on 15.5.1993 for an alleged
offence u/s 21(d), (e) and (f) of the Tamil Nadu Forest Act on the allegation that the vehicle had been found loaded with sandalwood, the
respondents 2 and 3 ought to have issued notice to the legal heirs, namely, the petitioner herein. On the other hand, it is the condition of the learned
Government Pleader that as per Section 49(B) the authority has to inform the grounds of seizure to the person from whom it was seized and before
passing an order of confiscation notice must be issued in writing to the registered owner. As per the name found in the Registration Certificate,
fourth respondent is the registered owner, due notice has been sent to him and after enquiry, after publication in the Tamil and English dailies, the
said vehicle was confiscated.
In order to appreciate the case of both parties, I shall refer the relevant provision in the Forest Act. Sections 49-A and 49-G were inserted by
Tamil Nadu Amendment Act XLIV of 1992. Section 49-A deals with confiscation by forest officers in certain cases. Section 49-A (1) enables the
competent authority to seize the property where a forest offence is believed to have been committed in respect of any scheduled timber, which is
the property of the Government. Section 49-A (2) enables the authority to confiscate the property so seized together with all tools, ropes, chains,
boats, vehicles, and cattle used in committing such offence. Section 49-B deals with issuance of show cause notice before confiscation u/s 49-A.
Since Section 49-B is relevant, the same is extracted hereunder:
49-B. Issue of show cause notice before confiscation u/s 49-A: (1) No order confiscating any scheduled timber, or tools, ropes, chains, boats,
vehicles or cattle shall be made u/s 49-A except after notice in writing to the person from whom it is seized informing him of the grounds on which
it is proposed to confiscate it any considering his objections if any: Provided that no order confiscating a motor vehicle shall be made except after
giving notice in writing to the registered owner thereof, if, in the opinion of the authorised officer, it is practicable to do so and considering his
objections if any. (2) Without prejudice to the provisions of Sub-section (2) no order confiscating any tool, rope, chain, boat, vehicle, or cattle
shall be made u/s 49-A if the owner of the tool, rope, chain boat, vehicle or cattle proves to the satisfaction of the authorised officer that it was
used in carrying scheduled timber without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the
took, rope, chain, boat, vehicle or cattle and that each of them had taken all reasonable and necessary precautions against such use.
As per Section 49-B the competent Authority has to inform the grounds of confiscation to the person from whom it was seized. If the said person
submits his objections, if any, the same has to be considered by the Authority. As per proviso to Section 49-B(1) the Authority has to issue notice
in writing to the registered owner before passing an order of confiscation. Registered owner is not defined in the Forest Act, however, Section 2(3)
of the Motor Vehicles Act defines ""owner"". ""Owner"" means a person in whose name a motor vehicle stands registered, and where such person is a
minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase agreement, or an agreement of lease or
an agreement of hypothecation, the person in possession of the vehicle under that agreement. There is no dispute that in the Registration Certificate
pertaining to the vehicle K.A. 01.182 the name of the fourth respondent is mentioned. In other words, the fourth respondent is the registered
owner. Even if the vehicle is subject to a hire purchase agreement, or an agreement of lease or an agreement of hypothecation as per Section 2(30)
of the Motor Vehicles Act the person is possession of the vehicle under that agreement is the owner.
In the counter affidavit, the service of the notice to the registered owner, namely, fourth respondent and the subsequent enquiry, ultimate order of
confiscation have been explained in para 3 and the same is extracted hereunder:
I submit that the authorised officer issued a show cause notice to the owner of the vehicle and also made necessary publication in both Tamil and
English dailies on 27.11.1993 and confiscated the vehicle after giving adequate opportunity to Thiru M. Amurtha, the registered owner of the
vehicle bearing Registration No. KA-01-182. The owner of the vehicle Thiru. M. Amrutha filed a writ petition in W.P. No. 10899 of 1993 and
the same is pending before this Hon''ble Court. In the writ filed by the owner, he has not mentioned a single word about the hire purchase between
himself and this writ petitioner. The genuineness of hire purchase agreement referred to herein could not be verified for want of particulars.
No doubt, the above factual position satisfies the mandatory provision of Section 49-B of the Tamil Nadu Forest Act. However, in the
Registration Certificate book there is an endorsement that the said vehicle is covered by a hire purchase agreement with the petitioner. Had
respondents 2 and 3 verified the Registration Certificate, they could have very well ascertained the above fact. Even though notice to the registered
owner is the sufficient compliance, in view of the fact that the said vehicle under seizure is covered by a hire purchase agreement duly endorsed in
the Registration Certificate, on the Principle of equity the authorities are bound to verify the same either from the registered owner or on perusal of
the Registration Certificate. In such circumstance, a duty is cast on the respondents 2 and 3 to issue notice to the petitioner herein before passing
an order of confiscation. No doubt, the respondents 1 to 3 on Principle Complied with the provisions of Section 49-B of the Act. In-asmuch as
the said vehicle is covered by hire purchase agreement and the 4th respondent having failed to pay the instalments, (According to the petitioner, he
has paid only 7 instalments out of 30) and of the fact that the 4th respondent has not raised any objection before the respondents 2 and 3, the said
Authorities ought to have verified the Registration Certificate and enquired further. I am of the view that there is some lacuna in the inserted
provisions, namely, Section 49-A to Section 49-G of the Tamil Nadu Forest Act. Even in the absence of any specific provision, on the Principle of
equity and good conscience a duty is cast on the Authority to verify the Registration Certificate and if there is an endorsement, notice ought to have
been issued to ""legal owner"". As a matter of fact, Section 40-B of the Tamil Nadu Forest Act enables the Authority if there is any objection from
the person from whom it was seized, he must conduct an enquiry by giving an opportunity to him. In this case there is no material with regard to the
objections raised by the fourth respondent, namely, the registered owner and the order passed by the competent authority in pursuance of his
objection. The learned Counsel for the petitioner has also brought to my notice the following decisions in support of his claim:
(i) G.C. Kesavalu Naidu, In re. 1955 M.W.N. 473; (ii) MAM and Co. v. Forest Range Officer, Thuratyur (1971) 1 M.L.J. 331; (iii) Kothari and
Co. v. State of Karnataka, etc. (1985) 1 K.L.J. 320.
After perusing the above decisions, I am of the view that the confiscation is not an automatic and the authority has to make all sincere efforts before
passing an order of confiscation on the principle of equity, justice and good conscience. He must also issue notice to the legal owner in this case,
viz., the petitioner herein. No doubt, in the enquiry if it is found that the petitioner was also responsible for the alleged offence, it is needless to
mention that it is always open to the Authority to confiscate the said vehicle in accordance with law. However, the Authority must consider the
case of the petitioner in the proper sense.
Though the petitioner has prayed for a writ of mandamus directing the third respondent to hand over the vehicle K.A. 01.182 seized by the
second respondent to the petitioner, in the interest of justice, it is open to this Court to mould the relief. Accordingly, I hereby direct the
respondents 2 and 3 to issue notice to the petitioner and after hearing the petitioner''s objections, if any, it is open to the authorities to pass final
order as provided under Sections 49-A and 49-B of the Tamil Nadu Forest Act. Till such enquiry as stated above is over, the vehicle shall be kept
under the custody of respondents 1 and 3. The writ petition is allowed to the extent indicated above. No costs. Consequently, W.M.P. No. 148 of
1994 is dismissed.