IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6874 of 2011
For Approval and Signature:
HON'BLE SMT. JUSTICE ABHILASHA KUMARI
===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No To be referred to the Reporter or 2 not ?
No 3 Whether their Lordships wish to see the fair copy of the judgment ? No Whether this case involves a substantial question of law as to the 4 interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No =====================================================
ASHOKBHAI SHIVABHAI MACHHI - Petitioner(s)
Versus
STATE OF GUJARAT & 6 - Respondent(s)
=====================================================
Appearance :
Mr.Mehul S.Shah for MR GC RAY for Petitioner Mr.Neeraj Soni, learned ASST.GOVERNMENT PLEADER for Respondents Nos. 1,2,4,5 and 6 NOTICE SERVED BY DS for Respondent No. 3 MR VIRAL V DAVE for Respondent No. 7, =====================================================
CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI
Date : 10/05/2012
ORAL JUDGMENT
1. Rule. Mr.Neeraj Soni, learned Assistant Government Pleader, waives service of notice of Rule for respondents Nos.1,2,4,5 and 6. Mr.Viral V.Dave, learned advocate, waives service of notice of Rule on behalf of respondent No.7. Respondent No.3, Talati- cum-Mantri of village Kothiya has not put in an appearance before this Court throughout, though served. For the aforesaid reason and as his presence is a formal one, there is no requirement of issuing notice of Rule to him. The petition is being heard and finally decided with the consent of the learned counsel for the respective parties.
2. By preferring this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 20-12-2008 of the Mamlatdar, Karjan (respondent No.4), whereby he has been convicted under Section 3(1)(b) of the Saurashtra Felling of Trees (Infliction of Punishment) Act,1951 ('the Act' for short) and a fine of Rs.53,000/- has been imposed upon him for alleged unauthorised felling of trees, and the order dated 20-04-2011 passed in Revision by the Deputy Secretary, Forests and Environment (respondent No.6), quashing and setting aside the order dated 25-02-2009 passed by the Deputy Collector, Vadodara (respondent No.5) thereby confirming the order of the Mamlatdar.
3. The brief factual matrix of the case can be summarised as follows:
The petitioner is the Sarpanch of Kothiya Gram Panchayat, Taluka Karjan, District Vadodara, having defeated respondent No.7 in the election. It is the case of the petitioner that his defeated political rival, respondent No.7, made an application against the petitioner and the Talati-cum-Mantri on 07-11-2008 to the Mamlatdar, accusing the petitioner of unauthorisedly cutting Babool trees. Pursuant thereto, the Circle Officer made a report on 18-11-2008, to the effect that on spot inspection it was found that 53 Babool trees were cut and the stumps of those trees were lying on the ground, for which the reply of the petitioner is called for. The Mamlatdar initiated proceedings against the petitioner on the basis of the above report of the Circle Officer, by issuing a Show Cause Notice to the petitioner. In his reply to the Show Cause Notice dated 18-12-2008 the petitioner asserted that during the monsoon season, about 53 Babool trees fell down due to the heavy rains and cyclone. The trees had dried up and the branches of the fallen trees were taken away by the village people, therefore, a resolution was passed on 15-10- 2008 by the Gram Panchayat to hold a public auction on 26-10-2008, to sell the tree stumps. The notice for the auction was affixed on the notice board of the Gram Panchayat and the office of the Milk Producers' Co-operative Society. The highest bidder paid Rs.30,000/- for the fallen trees, which amount has been deposited in the account of the Gram Panchayat. According to the petitioner, the action of auctioning the tree stumps was taken in the interest of the Gram Panchayat, so as to prevent people from taking away the trees. The explanation of the petitioner did not find favour with the Mamlatdar who, by his above- mentioned impugned order, held that the petitioner had unauthorisedly felled 53 trees. A fine of Rs.53,000/- was imposed upon the petitioner under Section 3(1)(b) of the Act. Aggrieved by the order of the Mamlatdar, the petitioner preferred an appeal before the Deputy Collector who, after hearing the parties and considering the material on record, found that there was no evidence on record to suggest that the petitioner had unauthorizedly cut green trees, or had got them cut by any other person. The Deputy Collector further observed in the order dated 25-02-2009, that the Gram Panchayat has passed a Resolution to auction the fallen trees, and the amount of Rs.30,000/- paid by the highest bidder, has been duly deposited in the account of the Gram Panchayat against receipts, therefore, no financial loss to the Gram Panchayat has been caused. It has further been observed by the
auction. It has been held by the Deputy Collector that the “Panchkyas” (spot inspection) dated 18-12-2008 does not reveal that the petitioner has felled, or got felled, any trees. On the basis of these findings, the Deputy Collector quashed and set aside the order of the Mamlatdar. Significantly, neither did the Circle Officer nor the Mamlatdar challenge the aforesaid order of the Deputy Collector. However, respondent No.7, at whose behest the proceedings have been initiated, preferred a revision application against the order of the Deputy Collector before the Deputy Secretary. In the impugned order dated 20-04-2011, the Deputy Secretary arrived at the conclusion that there were several 'doubtful circumstances' surrounding the entire episode, and proceeded to pose seven questions regarding the doubts entertained by him, which are enumerated in the said order. After holding that it was necessary to obtain the prior permission of the Mamlatdar before auctioning the trees, the Deputy Secretary set aside the order of the Deputy Collector. Aggrieved thereby, the petitioner has approached this Court, by way of the present petition.
4. On behalf of the petitioner, Mr.Mehul S.Shah, learned advocate, has forcefully submitted that the order dated 20-04-2011 passed by the Deputy Secretary is based purely upon surmises and conjectures, and contains no definite findings, whatsoever, against the petitioner. It is contented that the Deputy Secretary has merely posed seven hypothetical questions to himself regarding 'doubtful circumstances'. At the most, those so-called 'doubtful' aspects could have been got inquired into. However, without ordering an inquiry, the well-reasoned order of the Deputy Collector has been set aside without assigning any reasons. That, the material on record does not indicate that the petitioner has felled the trees or got them felled in an unauthorised manner. It is contended that the trees that had fallen down due to the cyclone and heavy rains have been auctioned by the petitioner, after a resolution authorising the auction was passed by the Gram Panchayat. It is not disputed that the entire proceeds of Rs.30,000/- have been deposited in the Bank Account of the Gram Panchayat. It is submitted that the trees were auctioned in order to prevent people from taking them away, and the amount realised from the auction can be utilised for developmental works of the Gram Panchayat. The learned advocate for the petitioner has further urged that Section 3(1)(b) of the Act is akin to a penal provision as it contemplates conviction. A finding of conviction can only be recorded and a fine imposed after it is proved, by material on record, that the petitioner has cut the trees. However, there is no material on record to show that the petitioner has either cut the trees or got them cut, therefore, the impugned orders are not supported by material on record. It is urged that the proceedings have been initiated at the behest of respondent No.7, who has been defeated by the petitioner in the election to the Gram Panchayat. Even the 'Panchkyas' (spot inspection) mentions that the trees have fallen due to the cyclone and other causes. The impugned orders of the Mamlatdar and the Deputy Secretary, having been passed against the material on record may, therefore, be quashed and set aside.
5. Mr.Neeraj Soni, learned Assistant Government Pleader, appearing for respondents Nos.1,2,4,5 and 6 has relied mostly upon the affidavit-in-reply filed by the Mamlatdar (Respondent No.4). It is submitted by the learned Assistant Government Pleader that the orders passed by the Mamlatdar and Deputy Secretary deserve no interference as the Panchanama drawn by the Circle Officer reveals that 53 Babool trees have been cut by the petitioner. It is further contended that the statements of three members of the Gram Panchayat also show that the petitioner has cut the trees. Moreover, the petitioner did not call a meeting of the Gram Panchayat or inform the members, regarding the auction, therefore, findings recorded by the Mamlatdar, as confirmed by the Deputy Secretary, are correctly arrived at.
6. Mr.Viral V.Dave, learned advocate for respondent No.7, has submitted that the petitioner has cut 53 Babool trees and sold them to a timber merchant. No agenda was circulated and the members of the Gram Panchayat were not informed before passing the resolution for auctioning the trees. It is further submitted that it is highly unlikely that there would be a cyclone in the month of September due to which the trees fell down. Supporting the orders passed by the Mamlatdar and Deputy Secretary, the learned advocate for respondent No.7 has prayed that the petition be rejected.
7. I have heard the learned counsel for the respective parties at length, and perused the material on record. The petitioner has been convicted for unauthorised felling of trees under Section 3(1) (b) of the Saurashtra Felling of Trees (Infliction of Punishment) Act,1951. It is a conviction by a revenue officer, and a fine of Rs.53000/- has been imposed upon him. It would be relevant to refer to the above- mentioned provision of law which reads thus:
“3. Unauthorised felling of trees prohibited.-
(1) Notwithstanding anything contained in the Code or in any other law for the time being in force in the State-
(a) no person either by himself or through any other person shall, without the written permission of the Collector or any other officer or any Village Panchayat constituted or deemed to be Village Panchayat under the Bombay Village Panchayats Act,1958 duly empowered in this behalf by the Government, voluntarily fell, appropriate or damage,or cause to be felled, appropriated or damaged, any tree,or any portion thereof,
(b) any person who contravenes the provisions of sub-clause (a) shall, on conviction by a revenue officer not below the rank of a Mahalkari authorised by Government in this behalf, be liable to fine which may extend to rupees one thousand and which shall not be less than rupees fifty unless the Revenue officer inflicting such fine considers it improper, for special reasons to be recorded in writing, to inflict such minimum amount of fine.
(2) Nothing contained in sub-section (1) shall apply to the felling, appropriating or damaging any branch of babool tree for the purpose of using it for causing it to be used for cleaning teeth.”
8. From the above provision of law it is clear that any person who is found to have contravened the provisions of sub-clause (a) of Section 3(1), by felling, appropriating, damaging or causing to be felled, appropriated or damaged, any tree or portion thereof himself or through any other person, without written permission of the Collector or any other Officer empowered in this behalf, shall be convicted by a revenue officer not below the rank of a Mahalkari and be liable to pay a fine, as specified in clause (b) of Section 3(1).
9. The verdict of conviction can only be based upon definite, cogent findings supported by the material on record. In the present case, the impugned order of the Deputy Secretary reveals that no definite or conclusive finding, have been arrived at. The well- reasoned order of the Appellate Authority (Deputy Collector) has been upset only on the basis of presumptions, surmises and conjectures. In the impugned order, the Deputy Secretary has posed as many as seven hypothetical questions to himself. In fact, these have been termed as 'doubtful circumstances'. However, no findings,leave alone any definite findings regarding the so-called 'doubtful circumstances', have been arrived at. Instead, without assigning any reasons or recording any findings whatsoever, leave alone definite and cogent ones, the Deputy Secretary has abruptly concluded that it was necessary to take permission from the Mamlatdar before auctioning the trees, and has proceeded to set aside the order of the Deputy Collector; consequently confirming the order of the Mamlatdar.
10. When the relevant provision of law, namely Section 3(1)(b) of the Act, envisages conviction by a revenue officer and punishment by way of imposition of fine, it was incumbent upon the Revisional Authority to record definite, cogent and precise findings in support of the verdict of conviction. A conclusion of conviction, with penal consequences, cannot be lightly arrived at by mere expression of doubts, presumptions, surmises and conjectures, as has been done by the Deputy Secretary in the impugned order. Conviction under the Act can have far-reaching circumstances, especially in cases such as the present one, where the proceedings have been initiated at the behest of a defeated candidate. If there were doubts in the mind of the Revisional Authority, an enquiry could have been ordered into the aspects that are considered doubtful. Without having done so, the Revisional Authority has set aside the order of the Appellate Authority (Deputy Collector) on the basis of doubts and presumptions alone. This has resulted in confirming the order of the Marmalade, without arriving at any findings on the basis of material on record. At best, the order of the Deputy Secretary can be said to be an exercise in questionable presumptions and conjectures,but the same cannot be sustained in law.
11. For the aforestated reasons, the impugned order of the Deputy Secretary (Revisional Authority) dated 20-4-2011 is quashed and set aside. The matter is remanded to the Deputy Secretary for fresh decision, after granting an opportunity of hearing to the parties. The Deputy Secretary shall decide in accordance with law, and shall record clear findings on the basis of material on record.
12. The petition is partly-allowed, in the above terms. Rule is made absolute, to the above extent. There shall be no orders as to costs.
(Smt.Abhilasha Kumari,J) arg