Shri Pundalik G. Kamat Sambari vs State of Goa and 3 others

Smt. R.S. Dalvi, J.—The appellant has challenged the interim order of the Trial court refusing injunction pending the suit. The suit has been filed challenging the order of Appellate Authority under the Goa, Daman and Diu Preservation of Trees Act, 1984.(The Act). The petitioner initially made an application to fell certain trees. The application was made for felling four trees. The appellant felled ten trees instead. The application was made u/s 9 of the Act. Section 9 lays down that any person desiring to fell or remove or dispose of any tree, shall make an application to the concerned Officer for permission and such application shall be accompanied by documents. There has been no proceedings with regard to the four trees felled by the appellant. However, regarding the six trees felled by the appellant, proceedings u/s 9 of the Act were taken. An offence was registered. The appellant compounded the offence u/s 22 of the Act. The property came to be released u/s 22 (b) of the Act, The respondent no.4 herein challenged the "order of compounding" which was pursuant to the application made by the appellant u/s 9 of the Act. He contends that the procedure u/s 9 of the Act was not followed by the applicant. Section 9 requires inter alia the procedure for obtaining permission to fell, cut, remove or dispose of a tree. The appellant had produced form I&XIV which are revenue records and not documents of title. The appellant did not produce any other document of title. Hence the permission to fell trees could not have been granted. The respondents claim to be the co-owners of the land on which the trees stand. The appellant having been granted permission to fell trees based upon the documents showed by him and considering that he is the owner of the land, the permission for felling the trees came to be granted. Hence the order ultimately passed after confiscating the timber by compounding the offence u/s 22 was the order in the application u/s 9 against which the respondent filed the appeal u/s 15 of the Act. The appeal therefore, is stated to have been filed essentially from the order u/s 9 of the Act since the respondent no.4 contends that the appellant did not have full title to the ownership of the land in support of his application for permission to fell the trees. Upon the appeal filed by the respondentno.4, an order came to be passed by the Appellate Authority on 30.01.2008. The appellant filed a suit challenging that order. The order was set aside and a fresh inquiry was ordered on 09.05.2008 in that suit .That fresh order has been passed on 22.11.2008which has been impugned in the suit, in which the order refusing temporary injunction has been passed on 23.07.2008 which is impugned in this petition.

The appellant contends that the order dated 23.07.2008 is without jurisdiction. It is contended on the ground that the Appellate authority has powers to hear the appeal only from orders passed under sections 9, 10, 11 and 12 of the Act whereas the order which has been passed in this petition is u/s 22 of the Act, which came to be challenged. That contention is incorrect in view of the fact that the respondent no.4 contends that his appeal has been filed against the very permission which came to be granted u/s 9 to the appellant to fell four trees .

It is contended on behalf of the appellant that an order compounding the offence can only be challenged by a person who is concerned with the compounding .The power to compound offence u/s 22 is not an order to compound offences. Section 22 does not contemplate an order to be passed. The offence could be registered if the provisions of the Act are not followed. Hence there is no "order of compounding" and as such that has not been challenged. It is therefore seen that the order is not without jurisdiction. The Appellate Authority did have jurisdiction u/s 15 foran order passed pursuant to the application for permission made u/s 9 of the Act.

It is also contended that in the proceedings which dealt with conservation of forests under which the appellant accepted the offence and compounded it, the Appellate Authority has allowed a third party to be heard and has passed the order far beyond its jurisdiction of apportioning a part of the proceeds being 75% of illegally felled trees to respondent no.4 who claimed to be the co-owner. Respondent no.4 himself filed the appeal. Hence the respondent no.4 is not the third party who has been allowed to intervene as contended on behalf of the petitioner. The respondent no.4 contended that it was not only the appellant who was the concerned party but there were other co-owners. The Appellate Authority has passed a reasoned order. He has considered the ownership which was seminally required to be shown in the application for the permission u/s 9 of the Act itself. Since a fresh inquiry was ordered to be made, the aspect of the procedure followed under that Section was to be considered. That is not the same as considering the title to the land. Since the documents in support of ownership of the land are to be produced in an application for permission to fell the trees, such documents are required to be considered. That aspect has been correctly considered.

That order of the Appellate Authority has been challenged in the suit filed by the appellant. The appellant applied for stay of that order. That application came to be disposed of refusing grant of interim relief which is the impugned order. It is contended that it is an order without jurisdiction since the authority cannot apportion the proceeds between co-owners. The appellant''s counsel has relied upon the Full Bench Judgment of this Court in the case of Gopinath Ganpatrao Pensalwar Vs. State of Maharashtra and Another, in which it is held that an order without jurisdiction is a nullity. That is a settled position in law. It has to be seen whether in this case the order of the Appellate Authority in the appeal filed u/s 15 of the Act upon the order passed in an application u/s 9 of the Act is without jurisdiction. If it is seen that the applicant in an application u/s 9 of the Act is not a full owner, but ace-owner, upon seeing that the documents he is required to produce do not show his ownership as required, but his ownership along with others the only necessary order and direction would be to accept such applicant''s act - in this case the act of compounding offence - but not to allow him the entire proceeds and to direct such proceeds to be shared by and between the co-owners; the type of ownership having been seen as contemplated u/s 9 of the Act. Besides, in this case, the appellant is shown to have offered to have the timber confiscated in an affidavit filed by him. After such offer, he cannot claim the entire proceeds to the exclusion of his co-owners. The impugned order is itself a reasoned order. It has also considered the jurisdiction of the Appellate Authority. The interim order has further considered that the appellant would been titled to the entire material of the felled trees if he succeeds in the suit and will be duly compensated in terms of money. As such the appellant has not made out a case. The impugned order can not be faulted. Appeal from Order is dismissed.