R. Anbu vs The Deputy Conservator of Forests and Authorised Officer

Shivaraj Patil, J.—Although W.M.P. Nos. 11269 and 11270 of 1995 are listed for orders, the writ petition itself is taken up for final

disposal as requested to by the learned counsel for the parties and with their consent.

The petitioner in the writ petition has questioned the validity and correctness of the impugned orders dated 11.7.1994 made in C.V. 110/93/E3

by the first respondent and the order dated 14.3.1995 passed in C.A. No. 85 of 1994 by the second respondent confirming the order of the first

respondent. In the writ petition, several grounds are raised to attack the impugned orders.

At the hearing, Sri. R. Balasubramanian, learned counsel for the petitioner submitted that the impugned order of confiscation passed by the first

respondent u/s 49A of the Tamil Nadu Forest Act, 1982 (Tamil Nadu Act 5 of 1982), on the face of it, cannot be sustained inasmuch as no show

cause notice was issued as required u/s 49-B of the said Act. He fairly submitted that this ground was not urged either before the first respondent

or before the second respondent. He, however, added that this being a pure question of law, that goes to the very root of jurisdiction to exercise

the power u/s 49-A of the Act, this Court may consider.

Learned Additional Government Pleader, on instructions and on the basis of the records submitted that no show cause notice was issued u/s 49-

B of the Act before the first respondent passed the order of confiscation u/s 49-A of the Act. He submitted that the petitioner having not raised this

ground either before the first respondent or before the second respondent, cannot at this stage, challenge the order of confiscation.

I have considered the submissions of the learned counsel for the parties.

I think is appropriate to extract Sections.49-A and 49-B to the extent they are relevant to appreciate the contention raised by the learned

counsel for the petitioner.

(1)...

49-A. Confiscation by Forest Officers in certain cases. -

(2) Where the authorised officer himself seizes under Sub-section (1) of Section 41, any scheduled timber which is the property of the Government

or where any such property is produced before the authorised officer under Sub-section (1) and he is satisfied that a forest offence has been

committed in respect of such property, such authorised officer may, whether or not a prosecution is instituted for the commission of such forest

offence, order confiscation of the property so seized together with all tools, ropes, chains, boats, vehicles and cattle used in committing offence.

(3)..

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 and 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)..

From the provisions contained in Sections 49-A and 49-B extracted above, it is clear that issuing of a show cause notice u/s 49-B is mandatory,

as no order confiscating any scheduled timber, or tools, rope 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 and considering his objections if any. In

other words, an order of confiscation can be made by the authorised officer u/s 49-A(2) only after notice u/s 49-B(1).

On the admitted facts, it is clear that no show cause notice as mandatorily required u/s 49-B of the Act was issued to the petitioner before the

first respondent proceeded to pass the impugned order of confiscation. In my view, the first respondent could get jurisdiction to pass the order of

confiscation u/s 49-A of the Act only after issuing a snow cause notice u/s 49-B of the Act. Non-issue of show cause notice u/s 49-B of the Act

definitely prejudiced the case of the petitioner. If show cause notice had been issued, the petitioner would have explained with reference to the

allegations whether any offence was committed at all by him.

Since the first respondent in my view passed the impugned order u/s 49-A of the Act without there being a prior show cause notice u/s 49-B of

the Act, the order of confiscation passed by him cannot be sustained. Unfortunately, this aspect or the ground was not urged before the learned

Sections Judge, the second respondent herein. Be that as it may, merely because the petitioner did not urge the ground before respondents 1 and

2, the impugned orders cannot be sustained on the basis of the undisputed facts and that too when they relate to the very jurisdiction to exercise

power u/s 49-A of the Act. I have no hesitation to hold that the impugned orders cannot be sustained. Although few more contentions were urged

by the learned counsel for the petitioner, I do not think it necessary to deal with them in the view I have taken.

At this stage, learned counsel for the petitioner urged that the car bearing registration No. MDH5480 was seized as early as on 18.10.1993

and the petitioner is put to great hardship and difficult because of the seizure. Having regard to the fact that the vehicle was seized on 18.10.1993

and for no fault of the petitioner, he has suffered when the first respondent has passed the impugned order of confiscation without issuing a show

cause notice u/s 49-B of the Act, and under the circumstances, appropriate orders may be passed in regard to the release of the car bearing

registration No. MDH5480 and even he may be put on terms for releasing the vehicle. Learned Additional Government Pleader submitted that in

case the court is inclined to direct the release of the car, the interest of the first respondent may be safeguarded by imposing appropriate

conditions. I am of the opinion that having regard to the facts and circumstances of the case stated above, orders are to be passed to release the

car subject to certain conditions.

In the result, I pass the following orders:

(i) The writ petition is allowed.

(ii) The impugned orders are quashed.

(iii) Liberty is reserved to the first respondent to issue a fresh show cause notice as required u/s 49-B of the Act and proceed in accordance with

law, if so desired; and

(iv) The first respondent is directed to release the car bearing registration No. MDH.5480, subject to the following conditions:-

(a) The petitioner shall establish the title to the car in question by producing necessary documents;

(b) He shall furnish security of the immovable property as to the value of Rs. 50,000 to the satisfaction of the first respondent;

(c) He shall produce the car as and when directed by the first respondent; and

(d) He shall not alienate or encumber the vehicle in any way.

Immediately on the petitioner satisfying the above conditions, the vehicle in question shall be released.

The Writ petition is disposed of accordingly. No cost.