Rakesh Choubey vs The State of Bihar

Shiva Kirti Singh, J.—For the purpose of interim relief heard learned counsel for the petitioner, learned counsel appearing for the Gram Panchayats and learned Government Advocate. After noticing the main contentions raised on behalf of the petitioner this writ petition was adjourned on 6.10.2004 to enable the State counsel to take instruction from Respondent No. 2, Secretary, Department of Environment and Forest, Govt. of Bihar. Now, a counter affidavit on behalf of O.P. No. 2 is available on record.

The main interim relief being sought on behalf of the petitioner is for stay of further proceeding in Forest Case No. 21 of 2004 pending in the court of Chief Judicial Magistrate, Rohtas at Sasaram and for direction to the authorities of the Forest Department to release the seized kendu leaves since it is a perishable commodity. A copy of order dated 7.10.2004 passed by a Bench of this Court in Civil Writ Jurisdiction Case No. 11081 of 2004 has been produced on behalf of the petitioner. It has been submitted that the concerned Gram Panchayats from whom the petitioner had purchased the kendu leaves in auction filed the aforesaid Civil Writ case for declaration of their right to pluck the kendu leaves and to dispose of the same as owners and in that writ proceeding on the prayer of the Gram Panchayats the seized kendu leaves have already been ordered to be released on an undertaking that the Gram Panchayats shall deposit 30 per cent of the sale proceeds which was to be recovered from the purchaser, in bank. A perusal of the said order dated 7.10.2004 further shows that lodging of a criminal case under the provisions of the Indian Forest Act and Wild Life Protection Act has also been noticed. On noticing the said order of release this Court felt difficulty in passing an order of release in favour of the petitioner of this writ against whom criminal case has been lodged and from whose custody the kendu leaves in question were seized. This Court was considering to transfer this writ petition for being heard together with civil writ petition by the same Court but learned counsel appearing for the Gram Panchayats has submitted that Gram Panchayats have actually obtained release of the kendu leaves for the benefit of this petitioner who is auction purchaser and the leaves will be handed over to this petitioner as soon as they are released by the forest authorities because 30 per cent of the sale proceeds is to be paid by this writ petitioner. In view of such stand and undertaking this Court is no longer required to pass a separate order for release in favour of the writ petitioner. The undertaking of the Gram Panchayats as noticed above is recorded and the concerned Gram Panchayats shall be obliged to hand over the kendu leaves to the writ petitioner as soon as the kendu leaves are released in favour of Gram Panchayats. Although, the kendu leaves were admittedly in possession of this writ petitioner earlier to their seizure but the aforesaid order has been passed only because in another writ petition order of release has been passed in favour of Gram Panchayats.

The only submission advanced on behalf of State with a view to persuade this Court not to follow order dated 7.10.2004 was to the effect that Annexure-A & C to the counter affidavit filed on behalf of Respondent No. 2 were not brought to the notice of the Court hearing the Civil Writ Petition. On going through the contents of Annexures-A and C this Court finds that no doubt no person including Gram Panchayats is permitted to collect forest produce from forests declared as sanctuaries or national parks. But such prohibition in law cannot have any effect on the rights of the Gram Panchayats unless on facts it is shown that the Gram Panchayats do not have any forest land available to them besides forest area which has already been declared sanctuary or national park. This is not the factual situation as appears from the counter affidavit. The allegation made in para-graph-23 of the counter affidavit that the Divisional Forest Officer had received information during April and May 2004 that kendu leaves is being collected from sanctuary area by unscrupulous elements has not been corroborated by annexing any contemporaneous records or documents. However, this aspect of the controversy shall be considered later when this writ petition will be taken up for decision on merits. Prima facie, there is no such clear-cut allegation in the prosecution report that leaves were found being collected from sanctuary area.

Put up this case for admission in usual course.

Until further orders further proceeding in Forest Case No. 21 of 2004 pending in the Court of Chief Judicial Magistrate, Rohtas at Sasaram shall remain stayed. However, if Forest Officers are making any enquiry under their statutory powers then such enquiry may continue. Learned counsel for the petitioner wanted certain submissions to be recorded in this order specially in respect of his allegation that even after order of release passed in the civil writ case the forest authorities have not released the kendu leaves and are taking steps to auction sale the kendu leaves. The scope of this criminal writ is being confined only to the proceeding of the criminal case hence those submissions have not been recorded in detail. The petitioner or the Gram Panchayats in question will be at liberty to raise all the submissions and bring all relevant facts to the Court which shall be hearing the C.W.J.C. No. 11081 of 2004.