IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 2258 of 2007 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= STATE OF GUJARAT & 1 - Applicant(s) Versus JITENDRAKUMAR AMULAKH MISTRI & 4 - Respondent(s) =========================================================
Appearance :
MR LB DABHI ADDL.UBLIC PROSECUTOR for Applicant(s) : 1 - 2.
MR DIPAK D JOSHI for Respondent(s) : 1, UNSERVED-EXPIRED (N) for Respondent(s) : 2 - 3. RULE NOT RECD BACK for Respondent(s) : 4 - 5.
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CORAM : HONOURABLE MR.JUSTICE M.R. SHAH
ORAL JUDGMENT Date : 27/02/2012 1.00. Present petition under Article 227 of the Constitution of India has been preferred by the petitioners - State of Gujarat and another, to quash and set aside the impugned judgement and order dtd.29/6/2007 passed by the learned District and Sessions Judge, Rajpipla at Narmada in Criminal Appeal No.6 of 1996 (Old Criminal Appeal No.11 of 2001).
2.00. Proceedings were initiated against the respondents for having illegal teakwood and running sawmill under the provisions of the Indian Forest Act and Bombay Forest Rules. That the Deputy Conservator of Forest, Rajpipla passed an order under section 52 of the Indian Forest Act, 1927 to confiscate two machines used for running sawmill as well as 11 teakwood. Being aggrieved by and dissatisfied with the order passed by the Dy.Conservator of Forest, respondents herein preferred Criminal Appeal No.11 of 2001 before the learned Sessions Judge, Narmada, which was subsequently renumbered as Criminal Appeal No.6 of 2006. It was specifically pointed out before the learned Sessions Court that the respondents were running sawmill without license. The learned appellate court did not considered the same solely on the ground that whether licence was required or not, is not mentioned in the order passed by the Dy.Conservator of Forest and consequently the learned Sessions Court by the impugned judgement and order dtd.29/6/2007 allowed the said appeal and quashed and set aside the order passed by the Dy.Conservator of Forest, Rajpipla dtd.22/1/2001 confiscating two machines used for sawmill for running sawmill as well as 11 pieces of teakwood. Being aggrieved by and dissatisfied with the impugned judgement and order passed by the learned appellate court, petitioners - State of Gujarat and another have preferred the present petition under Article 227 of the Constitution of India.
3.00. Mr.Dabhi, learned Additional Public Prosecutor appearing on behalf of the petitioners has vehemently submitted that the learned appellate court has not properly appreciated and considered the provisions of the Bombay Forest Rules, more particularly Rule 88 under which there is prohibition to run sawmill without previous sanction in writing of the Range Forest Officer. It is submitted that it was specifically pointed out that no sawmill can be run prior permission and/or previous sanction in writing of the concerned Range Forest Officer, however, the learned appellate court has not considered the same solely on the ground that the same is not reflected in the order passed by the Dy.Conservator of Forest. Therefore, it is requested to allow the present petition.
4.00. Mr.Dipak Joshi, learned advocate appearing on behalf of the contesting respondents has submitted that as such Rule 88 of the Bombay Forest Rules, upon which reliance has been placed by the petitioners, was not placed and/or pointed out before the learned appellate court and therefore, the learned appellate court had no occasion to consider the same and therefore, it is requested to remand the matter to the learned appellate court if this Court is inclined to consider the same.
5.00. Having heard the learned advocates appearing on behalf of the respective parties and considering the impugned judgement and order passed by the learned appellate court and considering Rule 88 of the Bombay Forest Rules, it cannot be disputed that there is prohibition to establish saw-pit and/or to run sawmill without previous sanction in writing of the concerned Range Forest Officer. As such, as the same is provided under the statutory Rules, the learned appellate court ought to have considered the same though it might not have been reflected in the order passed by the Dy.Conservator of Forest. Unfortunately, the learned appellate court has not considered the same mainly and solely on the ground that whether such an licence is required, is not mentioned in the order passed by the Dy.Conservator of Forest. Under the circumstances and in view of the specific provisions under the Bombay Forest Rules, more particularly Rule 88, the impugned order passed by the learned appellate court cannot be sustained and as the said aspect has not been considered by the learned appellate court, the matter is required to be remanded to the learned appellate court for considering the same in accordance with law and on merits and considering the provisions of the Bombay Forest Rules as well as Indian Forest Act.
7.00. In view of the above and for the reasons stated above, present petition succeeds. The impugned judgement and order dtd.29/6/2007 passed by the learned District and Sessions Judge, Rajpipla at Narmada in Criminal Appeal No.6 of 1996 (Old Criminal Appeal No.11 of 2001) is hereby quashed and set aside and the matter is remanded to the learned Sessions Court for deciding the same in accordance with law and on merits and considering the provisions of the Indian Forest Act as well as Bombay Forest Rules, more particularly Rule 88 and/or any other provisions. The aforesaid exercise shall be completed within a period of SIX MONTHS from the date of receipt of the present order. Rule is made absolute to the aforesaid extent.
rafik [M.R. SHAH, J.]