Jaswant Singh vs Divisional Forest Officer

This matter was posted in ''B'' Group and by consent of parties, it was taken up for final hearing.

In this petition under Art. 226 of the Constitution, the petitioner has sought for a writ in the nature of Mandamus to the Respondent to release the vehicle bearing No. BHN 5571 and also for a writ in the nature of prohibition directing the respondent to refrain from proceeding with the case in No. SDL.GL. 3490/78-79. The grievance of the petitioner is that the aforesaid transport vehicle belongs to him and the same was seized by the Hoskote Police on 11-3-1979 purporting to act under the provisions of S. 62(1) of the Karnataka Forest Act. 1963 (hereinafter referred to as ''the Act'') and thereafter the said vehicle was produced before the respondent namely, the Divisional Forest Officer, Bangalore, under S. 71A of the Act. The further case of the petitioner is that he has made an application before the respondent for release of the aforesaid vehicle under S. 63 of the Act and that Application and the proceedings under S. 71A of the Act, also have not been finalised.

Time was granted to the respondent to enable him to file his statement of objections, even then, he has not filed the same. Therefore, this Court has to proceed on the basis of the allegations contained in the writ petition as there is no denial of the same.

The State Government, in exercise of its powers under sub-sec. (1) of S. 71A of the Act, has by the notification No. FFD 90 FDP 76(1) dated 5th July 1976 published in the Karnataka Gazette, dated 8-7-1976, authorised all the Deputy Conservators of Forests to be authorised officers for the purpose of the sub-section (1) of S. 71A of the Act. The Divisional Forest Officer is also the Deputy Conservator of Forests. Thus, the respondent is the authorised officer for the purpose of S. 71A of the Act. In view of this, the Hosakote Police, purporting to act under Sec. 62(1) of the Act, after seizing the vehicle in question on 11-3-1979, have produced the same before the respondent. Under Rule 69 of the Karnataka Forest Rules, 1969 (hereinafter referred to as ''the Rules''), Chief Conservators of Forest, Conservators of Forests, Deputy Conservators of Forests, Assistant Conservators of Forests and Forest Rangers, in addition to the powers given by the Act have been empowered to exercise the powers under Ss. 63 and 71 of the Act. As already pointed out, the Divisional Forest Officer is also the Deputy Conservator of Forests and he is called as Divisional Forest Officer because he is in charge of a forest division. The relevant portion of Rule 69 of the Rules reads as follows:

"Powers of Forest Officers.-The category of officers mentioned in column (1) of the table below shall, in addition to powers given by the Act, exercise the powers under the sections specified in the corresponding entries in column (2) thereof. A brief description of the powers conferred is also given in column 3 of the table-

Category of Officers Section of the Act under which powers are conferred Brief Description of powers conferred

1 2 3

Chief Conservator of Forests, Conservators of Forests, Deputy Conservators of Forests, Assistant Conservators of Forests and Forest Rangers

58 To receive payments on

account of drift timber.

63 To release property seized

under Sec. 62

66 To take charge of Govt.

or confiscated property

67 To accept charge of property

when offender is unknown

71 To direct the release of property seized under Sec. 62 which is not the property of Government and to withdraw charges made in respect of such property.

Thus, from Rule 69 of the Rules, it is clear that the Divisional Forest Officer who is also the Deputy Conservator of Forests has been empowered to exercise the power under S. 63 of the Act, to release the property seized under S. 62 of the Act. He has also been empowered to exercise the power under S. 71 of the Act, to direct release of the property seized under S. 62 which is not the property of the Government and to withdraw charges made in respect of such property.

In the instant case, the. vehicle in question is not claimed to be the properly of the Government. Thus, the petitioner was justified in making an application before the respondent for releasing of the vehicle in question. According to the case of the petitioner, the application filed by him under S. 63 of the Act, for release of the vehicle has not so far been considered and no order has been passed by the respondent and when he enquired about the same, the respondent is stated to have orally told the petitioner that his application for the release of the vehicle during the pendency of the proceedings had been rejected and that he is not prepared to release the vehicle. There was no order as such, passed by the respondent except that he orally informed the petitioner that the application has been rejected.

S. 63 of the Act provides that any Forest Officer of a rank not inferior to that of a Forest Ranger may release the tools, boats, vehicles or cattle seized under S. 62 of the Act, either by himself or by his subordinates on the execution by the owner thereof of a bond for the production of the property so released if and when so required before the Magistrate having jurisdiction to try the offence on account of which, the seizure had been made. In the instant case, it cannot be said that the respondent cannot exercise the power under S. 63 of the Act, merely because the vehicle in question was seized by the police and not by the respondent or any of his subordinates. The State Government in exercise of its Rule making power under S. 102 read with S. 99 of the Act, has empowered the respondent and other officers mentioned in Rule 69 of the Rules referred to above, to exercise the power under S. 63 of the Act, to release the property seized under S. 62 of the Act. Under S. 62 of the Act, it is open for any Forest Officer or Police Officer toseize, when there is reason to believe that a forest offence has been committed in respect of any forest produce, such produce, together with all tools, boats, vehicals or cattle used in committing any such offence. In the instant case, the Hosakote police, after seizing the vehicle under Sec. 62(1) of the Act, have produced the same before the respondent under Sec. 71A of the Act, as the respondent is one of the authorised officers for the purpose of S. 71A of the Act. The power given to the various Officers including the respondent under Rule 69 of the Rules, are in addition to the power given to them under the Act. As already pointed out, the power given to respondent under Rule 69 of the Rules, is toexercise the power under S. 63 of the Act, to release the property seized under S. 62 of the Act. Thus, even the property seized by a police officer under Sec. 62 of the Act and produced before the authorised officer under Sec. 71A of the Act, can be released by such authorised officer before whom the property is produced, as the officer authorised for the purpose of S. 71A of the Act, is one of the officers mentioned in Rule 69 of the Rules. Thus, the respondent, in exercise of the power under Sec. 63 of the Act, ought to have considered the application of the petitioner for release of the vehicle in question. Further, the respondent has also been empowered to exercise the power under S. 71 of the Act. by Rule 69 of the Rules, as quoted above, to direct the release of the property seized under S. 62 which is not the property of the Government and to withdraw charges made in respect of such property.

S. 71 of the Act, provides that nothing hereinbefore contained shall be deemed to prevent any officer empowered in this behalf by the State Government from directing at any time the immediate release of any property seized under S. 62, which is not the property of Government and the withdrawal of any charge made in respect of such property. That being so, it was incumbent upon the respondent to immediately consider the application of the petitioner and to direct the release of the vehicle in question on such conditions as are deemed fit, or on execution by the petitioner of a bond for the production of the vehicle in question so released, if and when so required, before the Magistrate having jurisdiction to try the offence on account of which the seizure had been made. On the contrary, the respondent has not passed any order but as stated by the petitioner, he informed the petitioner orally that the application of the petitioner has been rejected. There cannot be any oral rejection of the application filed by the petitioner for release of the vehicle in question. The order refusing to release the vehicle must be in writing and must be supported by reasons.

The respondent is statutorily bound to consider the application for release of the vehicle without any delay. The vehicle was seized as long back as on 11.3.1979. Under the provisions pointed above, it was the duty of the respondent to consider the application for release of the vehicle immediately without any delay. The respondent has failed to discharge the statutory obligation and the delay caused in the matter, in the absence of any explanation by the respondent is nothing but an indication of his reluctance to release the vehicle without any reason whatsoever. This has caused irreparable loss and damage to the petitioner.

Even the proceedings under S. 71A of the Act also have not been finalised. The respondent cannot be refrained from proceeding under Sec. 71A of the Act, as he is authorised as pointed above, to exercise the power under S. 71A. But, he ought to have finalised the proceeding long buck. Thus, it is clear that the respondent has failed to discharge the statutory duty and this failure on his part has caused irreparable loss and damage to the petitioner in view of the fact that the vehicle in question has been stationed because of the seizure since 11.3.1979.

Consequently, the respondent is hereby directed to consider the application filed by the petitioner for release of the vehicle forthwith, at any rate, not later than one week from the date of receipt of this order.

Let a copy of the order be sent to the respondent, forthwith.