Noor Mohammad and Others vs State of U.P. and Others

Heard the learned Counsel for the petitioner, Sri H.P. Srivastava, learned Additional Chief Standing Counsel and perused record.

The short question involved in this writ petition is, as to whether the Divisional Forest Officer, has got power to impose damage on account of loss caused to the forest land?

On receipt of allegation with regard to the alleged damage caused to forest land, an F.I.R. was lodged and according to petitioners'' counsel, chargesheet has been submitted pending for trial before the Court of Chief Judicial Magistrate, Lakhimpur Kheri. Relying upon the contents of F.I.R., the Divisional Forest Officer has sent a reference to the District Magistrate to recover the damages from 150 persons including the petitioners. However, in the F.I.R., name of all the persons have not been mentioned. The order of recovery has been challenged on the ground that the Divisional Forest Officer has got no jurisdiction to impose damages.

It is also stated that without holding a proceeding in accordance with law with due compliance of principles of natural justice, the damages cannot be imposed. The amount of damages imposed on the villagers including the petitioners as appears from the contents of F.I.R., are the same.

It has been stated that the matter is pending before the Chief Judicial Magistrate concerned, Lakhimpur Kheri, who has yet to decide whether the petitioners have damaged the forest land or not. During pendency of the case before the Chief Judicial Magistrate, Lakhimpur Kheri, the Divisional Forest Officer, vide order dated 25.3.2009, observed that the petitioners have caused damages to the forest land, in consequence thereof, by the subsequent order dated 1.4.2009, the District Magistrate has issued order of recovery of amount as damages from the petitioners.

Attention has been invited to Section 26 of the Forest Act, which is reproduced as under:

Acts prohibited in such forests. (1) Any person who

(a) makes any fresh clearing prohibited by Section 5, or

(b) sets fire to a reserved forest, or, in contravention of any rules made by the State Government in this behalf, kindles any fire, or leaves any fire burning, in such manner as to endanger such a forest; or who, in a reserved forest

(c) kindles, keeps or carries any fire except at such seasons as the Forest-officer may notify in this behalf,

(d) trespasses or pastures cattle, or permits cattle to trespass;

(e) causes any damage by negligence in felling any tree or cutting or dragging any timber;

(f) fells, girdles, lops, or bums any tree or strips off the bark or leaves from, or otherwise damages, the same;

(g) quarries stone, bums lime or charcoal, or collects, subjects to any manufacturing process, or removes, any forest-produce;

(h) clears or breaks up any land for cultivation or any other purpose;

(i) in contravention of any rules made in this behalf by the State Government hunts, shoots, fishes, poisons water or sets traps or snares; or

(j) in any area in which the Elephants Preservation Act, 1879 (6 of 1879), is not in force, kills or catches elephants in contravention of any rules so made, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid.

(2) Nothing in this section shall be deemed to prohibit-

(a) any act done by permission in writing of the Forest-officer, or under any rule made by the state Government; or

(b) the exercise of any right continued under Clause (c) of Sub-section (2) of Section 15, or created by grant or contract in writing made by or on behalf of the Government u/s 23.

(3) Whenever fire is caused wilfully or by gross negligence in a reserved forest, the State Government may (notwithstanding that any penalty has been inflicted under this section) direct that in such forest or any portion there of the exercise of all rights of pasture or to forest produce shall be suspended for such period as it thinks fit.

A plain reading of aforesaid provision shows that power has been conferred on the Magistrate concerned to impose penalty or award punishment or damages with regard to offence committed under the Forest Act.

Sri Balram Yadav, learned Counsel for the petitioners while assailing the impugned orders stated that the Divisional Forest Officer lacks jurisdiction to impose penalty. Section 26 of the Forest Act empowers the Magistrate to impose penalty award punishment or damage to the offenders involved in usurpation of forest land in accordance with law after due opportunity of hearing.

It has been stated by the learned Counsel for the petitioners that chargesheet has been filed and the matter is pending before the Chief Judicial Magistrate concerned.

On a query made by this Court as to how the Divisional Forest Officer has got power to impose damage in the manner it has been done, Sri H. P. Srivastava learned Additional Chief Standing Counsel on the basis of pleading on record, submits that the power conferred by Section 82 of the Indian Forest Act has been exercised by the Divisional Forest Officer. The provisions of Section 82 of the Indian Forest Act is reproduced as under:

Recovery of money due to Government.-All money payable to the Government under this Act, or under any rule made under this Act, or on account of the price of any forest produce, or of expenses incurred in the execution of this Act in respect of such produce, may, if not paid when due, be recovered under the law for the time being in force as if it were an arrear of land- revenue.

Section 82 of the Act has been amended and amended portion has been referred in the impugned order dated 25.3.2009 a copy of which is contained in Annexure No. CA-2 to the counter affidavit filed by the State. The power conferred by Section 82 is the enabling provision to recover the dues payable to Government on various counts. It does not empower the Divisional Forest Officer to impose damage or direct to compensate the Forest Department for loss caused. The question with regard to recovery of due arises after passing of the basic order in accordance with law imposing damages. A plain reading of Section 82 reveals that it regulates the procedure to recover the dues and not to impose damages.

Section 82 as amended by the U.P. Act No. 1 of 2001, given effect from 16.4.2001, is reproduced as under:

Recovery of money due to State Government.-All money, other than fines, payable to the State Government under this Act or under any rule made thereunder or on account of the price of any forest produce or any agricultural crop grown on land owned by the State Government in a reserved or protected forest or under any contract relating to forest produce or said agricultural crop, including any sum recoverable thereunder for breach thereof, or in consequence of its cancellation, or under the terms of a notice relating to the sale of such agricultural crop or other forest produce by auction or by invitation of tenders issued by or under the authority of a Forest Officer and all compensation awarded to the State Government under this Act, may, if not paid when due, be recovered, under the law for the time being in force, as if it were an arrear of land revenue.

A plain reading of Section 82 does not reveal that the Divisional Forest Officer has been empowered to impose damage in case some persons encroach upon the forest land or cause some loss to forest land. The power of recovery u/s 82 has been conferred to recover dues payable by the persons and it does not empower the Divisional Forest Officer and District Magistrate to impose damage. Notice was issued to the petitioners but in response thereof, no reply has been submitted.

Nothing has been brought on record by the State Government while filing counter affidavit indicating as to how the damage has been assessed and what procedure has been adopted. Even if assuming that the petitioners have not submitted any response, the awarding of damages or penalty on account of an offence must be conformed to penal act.

By catena of judgments, Hon''ble Supreme Court and this Court settled that a thing should be done in the manner provided by the Act and statutes and not otherwise. When the Statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same. It has been hither to uncontroverted legal position that where a statute requires to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden.(Vide Taylor v. Taylor (1876) 1 Ch.D.426 ; AIR 1936 253 (Privy Council) Deep Chand Vs. The State of Rajasthan, Patna Improvement Trust Vs. Smt. Lakshmi Devi and Others, State of Uttar Pradesh Vs. Singhara Singh and Others, Nika Ram Vs. State of Himachal Pradesh, Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, Chettian Veetil Ammad and Another Vs. Taluk Land Board and Others, State of Bihar and Another Vs. J.A.C. Saldanha and Others, A.K. Roy and Another Vs. State of Punjab and Others, State of Mizoram Vs. Biakchhawna, J.N. Ganatra Vs. Morvi Municipality, Morvi, Babu Verghese and Others Vs. Bar Council of Kerala and Others, and Chandra Kishore Jha v. Mahavir Prasad (1998) 8 SCC 266).

The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusio alterius", meaning thereby that if a statute provides for a thing to be done in a particular, then it has to be done in that manner and in no other manner and following other course is not permissible. This maxim has consistently been followed, as is evident from the cases referred to above. A similar view has been reiterated in Haresh Dayaram Thakur Vs. State of Maharashtra and Others, Delhi Administration Vs. Gurdip Singh Uban and Others, Dhanajaya Reddy v. State of Karnataka etc. etc., (2001) 4 SCC 9; Commissioner of Income Tax, Mumbai Vs. Anjum M.H. Ghaswala and Others, Prabha Shankar Dubey v. State of Madhya Pradesh AIR 2004 SC 486; and Ram Phal Kundu Vs. Kamal Sharma,

No statutory provisions could be pointed out by the learned Additional Chief Standing Counsel except Section 82 under which the Divisional Forest Officer has exercised power to impose damages. Under the facts and circumstances of the case, the impugned orders seem to have been passed without jurisdiction. A faint argument has been advanced by the learned standing counsel that damages could have been imposed on the persons for the loss caused by them to the forest land in view of the provisions contained in Prevention of Damage to Public Property Act, 1984.

However, reading of the Prevention of Damage to Public Property Act, 1984, does not seem to cover the present controversy. The Forest Act is a complete code in itself and while assessing damages, the authorities have to act in the manner provided in the Act itself. Once a special law has been enacted by the Legislature to deal with the subject, then that should be done under the special law and not under the general law. It is a very settled proposition of law.

Moreover as observed hereinabove, Section 26 of the Forest Act specifically deals with the controversy in question. Once specific provision has been provided under the said law to deal a subject then, the matter should be dealt with under the same provision and not otherwise. The action taken by the respondents in absence of any statutory provisions conferring power on to the Divisional Forest Officer to award damages and in consequence thereof, to proceed with the recovery thereof, seems to be arbitrary exercise of power.

It appears that the First Information Report has been lodged on account of alleged damage caused by as many as 150 persons. In the First Information Report, the amount has been mentioned. No separate notice has been attached with the counter affidavit which may reveal that they were served for the alleged loss calling upon them to submit response indicating the damages caused by them.

Factual controversy mentioned in the First Information Report, relates to criminal offence. The averments made in the First Information Report, cannot be treated as substantial evidence and to make it the basis for recovery of damages from the petitioners. The principles of law governing the criminal and civil rights, are different and the contents of First Information Report, are meant only to prosecute the offenders for criminal offence. It cannot be treated as the ground to proceed with recovery proceeding against the petitioners for the alleged damage in question. In case the authorities feel that some damage has been caused by the petitioners, then for that, they are expected to proceed and should have proceeded in accordance with law. Otherwise also, it is a settled proposition of law that the First Information Report, is not a substantive piece of evidence unless the allegation mentioned therein, is proved by cogent and material evidence.

So far as the criminal case is concerned, that aspect should be dealt with by the trial court concerned. During the pendency of trial except the First Information Report, or the report in question, nothing has been brought on record to establish that the proceeding was initiated by the State or the Forest authorities in accordance with the provisions contained in the Forest Act or the Rules framed thereunder. Noncompliance of statutory provisions or proceedings initiated in arbitrary manner whimsically against the citizen de hors the Rule, is anti-thesis of the Rule of law in a democratic polity. The gravity of offence does not empower the State or its authorities to proceed in its own way arbitrarily.

One of the arguments advanced by the learned Additional Chief Standing Counsel is that an identical writ petition being Writ Petition No. 5306 (M/B) of 2009, has been decided by the Division Bench by the judgment and order dated 9.6.2009 to avail the alternative remedy.

A perusal of the judgment and order dated 9.6.2009 reveals that their lordships have not considered the jurisdictional error in passing the order. In case an authority lacks jurisdiction to impose penalty, then such order is amenable to writ jurisdiction under Article 226 of the Constitution of India, vide judgment of Hon''ble Supreme Court reported in Dr (Smt.) Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Others,

Hon''ble Supreme Court in the case reported in S.N. Sharma Vs. Bipen Kumar Tiwari and Others, held that alternative remedy is the rule of discretion and not an exclusion of jurisdiction under Article 226. It has been further held in the case reported in Century Spinning and Manufacturing Company Ltd. and Another Vs. The Ulhasnagar Municipal Council and Another, that in case the petition may be decided on the basis of material on record, then alternative remedy shall be no bar.

In the case reported in Rashid Ahmed Vs. The Municipal Board, Kairana, Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, and Himmatlal Harilal Mehta Vs. The State of Madhya Pradesh and Others, it has been further held that it is self-imposed limitation and does not oust the jurisdiction of this Court to exercise power conferred by Article 226 of the Constitution of India even if an alternative remedy is available to an aggrieved person.

Their lordships of Hon''ble Supreme Court in the case reported in The State of Bombay and Another Vs. The United Motors (India) Ltd. and Others, held that alternative remedy shall not come into the way where party come to court with an allegation that his fundamental right has been violated and sought the relief under Article 226 of the Constitution of India.

It has been settled by Hon''ble Supreme Court in the case reported in Calcutta Discount Company Limited Vs. Income Tax Officer, Companies District, I and Another, and AIR 1967 SC 549 (Bhopal Sugar Industry v. STO), that where mandatory provision of law has not been complied with and petitioners suffer from no fault on his or her part, the alternative remedy shall not be a bar to exercise jurisdiction under Article 226 of the Constitution of India.

It has also been settled by Hon''ble Supreme Court that where important question of law is involved it shall be open to exercise extraordinary jurisdiction of Article 226 of the Constitution of India to settle a controversy. It has further been held that where public authority is acting contrary to provision of law or taking undue advantage of its own then alternative remedy shall not be a bar, vide, judgments reported in Union of India (UOI) and Another Vs. State of Haryana and Another, Union of India v. State of Haryana and 2002 (3) SCC , Salonah Tea Co. Ltd. and Others Vs. Superintendent of Taxes, Nowgong and Others, M.D., Tamil Nadu State Transport Corporation Vs. Neethivilangan Kumbakonam, Shiv Shankar Dal Mills and Others Vs. State of Haryana and Others, Shiv Shankar Dal Mill v. State of Haryana.

In a case reported in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, Honble Supreme Court had held that alternative remedy shall not be a bar and dismissal of writ petition by High Court held to be not proper. The order passed by the authorities arbitrarily by abusing the power or in violation of principle of natural justice, may always be subjected to judicial review under Article 226 of the Constitution of India.

In the present case, substantial question of law has been raised by the petitioner''s counsel with regard to jurisdiction of Divisional Forest Officer, which may be adjudicated without entering into the factual controversy. Hence, it is a fit case where, this Court should exercise extraordinary jurisdiction power conferred by Article 226 of the Constitution of India. The relegation of matter to civil court, is not effective and efficacious alternative remedy to deal with the substantial question of law.

In a case reported in Godrej Sara Lee Ltd. Vs. Asst. Commissioner (AA) and Another, Hon''ble Supreme Court observed held that if the order of statutory authority is questioned on the ground of lack of jurisdiction, Court may interfere and the alternative remedy is no bar. Their lordships held that where issue relating to jurisdictional fact is raised, it should have been determined by the High Court in exercise of writ jurisdiction under Article 226 of the Constitution of India

In the case reported in Babubhai Jamnadas Patel Vs. State of Gujarat and Others, Hon''ble Supreme Court held that High Courts and Supreme Court are sentinels of justice. They have been vested with extraordinary powers of judicial review and supervision to ensure that rights of citizens are duly protected. Courts have to maintain a constant vigil against inaction of authorities in discharging their duties and obligations in the interest of citizens for whom they exist. Directions may be issued to authorities to perform their duties as required under various statutes.

The catena of judgments of Hon''ble Supreme Court referred to above, were not considered by the Division Bench of this Court while passing the order dated 9.6.2009.The judgment is per incurrium to law settled by Hon''ble Supreme Court.

Per incurrium means in ignorance of or without taking note of some statutory provisions or the judgement of Honble Supreme Court or the larger Bench, vide; State of Bihar Vs. Kalika Kuer @ Kalika Singh and Others, State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, Mamleshwar Prasad and Another Vs. Kanhaiya Lal (Dead) through L. Rs., Sunita Devi Vs. State of Bihar and Another, Ram Gopal Baheti v. Girdharilal Soni and Ors., (1999) 3 SCC 112 A.R. Antulay Vs. R.S. Nayak and Another, Sarnam Singh and Another Vs. Dy. Director of Consolidation and Others, State through S.P., New Delhi Vs. Ratan Lal Arora, State v. Ratan Lal Arora;

The concept of "per incurrium" in all those decisions given is ignorance or forgetfulness of some inconsistent statutory provisions or of some authority binding on the Court concerned, i.e., previous decisions of the Court i.e. its own Court or by a Court of co-ordinate or higher jurisdiction or in ignorance of a term of a statute or by a rule having the force of law. "Incuria", literally means "carelessness". In practice, per incurrium is taken to mean per ignoratium. (Vide Mamleshwar Prasad and Another Vs. Kanhaiya Lal (Dead) through L. Rs., A.R. Antulay Vs. R.S. Nayak and Another, State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, B. Shama Rao Vs. The Union Territory of Pondicherry, Municipal Corporation of Delhi Vs. Gurnam Kaur, Ram Gopal Baheti v. Girdharilal Soni and Ors., (1999) 3 SCC 112 Sarnam Singh and Another Vs. Dy. Director of Consolidation and Others, Government of Andhra Pradesh v. B. Satyanarayana Rao (dead) by L.Rs, and Ors; AIR 2000 SC 1729 ; M/s. Fuerst Day Lawson Ltd. Vs. Jindal Exports Ltd., Suganthi Suresh Kumar Vs. Jagdeeshan, State of Bihar v. Kalika Kuer AIR 2003 SC 2443; Director of Settlements, Andhra Pradesh and Others Vs. M.R. Apparao and Another, Manda Jaganath Vs. K.S. Rathnam and Others, Sunita Devi v. State of Bihar and Ors. 2004 AIRSCW 7116 ; Central Board of Dawoodi Bohra Community and Another Vs. State of Maharashtra and Another, K.H. Siraj Vs. High Court of Kerala and Others, and Union of India (UOI) and Another Vs. Manik Lal Banerjee,

State through S.P., New Delhi Vs. Ratan Lal Arora, the Hon''ble Supreme Court held that where in a case the decision has been rendered without reference to statutory bars, the same cannot have any precedent value and shall have to be treated as having been rendered per incurrium.

In N. Bhargavan Pillai (Dead) by Lrs. and Another Vs. State of Kerala, the Hon''ble Supreme Court held that in view of the specific statutory bar, the view, if any, expressed without analysing the statutory provision cannot, in our view, be treated as a binding precedent, and at the most is to be considered as having been rendered per incurrium.

A similar view has been reiterated in Mayuram Subramanian Srinivasan Vs. C.B.I., wherein the Apex Court has observed as under:

"Incuria" literally means "carelessness". In practice per incurrium is taken to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The ''''quotable in law", as held in Young v. Bristol Aeroplane Co. Ltd. (1944) 2 All ER 293, is avoided and ignored if it is rendered, ''''in ignoratium of a statute or other binding authority". Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution of India, 1950 (in short "the Constitution") which embodies the doctrine of precedents as a matter of law. The above position was highlighted in State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, . To perpetuate an error is no heroism. To rectify it is the compulsion of the judicial consigns. The position was highlighted in Nirmal Jeet Kaur Vs. The State of Madhya Pradesh and Another,

In view of the above, the writ petition seems to be maintainable in this Court. The earlier judgment lacks binding effect being per incurrium to law settled by Hon''ble Supreme Court.

There is another aspect of the matter. The recovery proceeding was stayed by this Court by a Division Bench of this Court, prima facie being satisfied on the ground raised by the petitioners. Since the question raised by the petitioners is of general public importance, with regard to jurisdiction of Divisional Forest Officer, to impose damage, it is a fit case where jurisdictional power conferred by Article 226 of the Constitution of India, should be exercised relying upon various pronouncements of Hon''ble Supreme Court.

As observed hereinabove, in case State Government feels that some damage has been caused by the petitioners or other villagers, then it should have proceeded in accordance with the statutory provisions and not otherwise. In view of the above, the writ petition deserves to be allowed.

Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 25.3.2009 and subsequent order dated 1.4.2009 contained in Annexure No. 1 and 2 to the writ petition. However, liberty is given to the respondents to proceed afresh in accordance with law and the petitioners shall cooperate with the proceedings.

It has been brought to notice of this Court that chargesheet has been filed in the criminal cases pending before the trial court, since long. The District Judge, Lakhimpur Kheri is directed to look into the matter and may proceed with the criminal cases with regard to present controversy expeditiously and conclude the same to its logical end preferably, within one year from the date of receipt of a certified copy of this judgment.

Sri H.P. Srivastava, learned Additional Chief Standing Counsel shall communicate this judgment to the learned District Judge, Lakhimpur Kheri forthwith. The Registry of this Court shall also communicate the judgment to the learned District Judge, Lakhimpur Kheri forthwith.