PUNIA BISWAL Vs. DIVISIONAL FOREST OFFICER

JUDGEMENT

(1.) THE order of the Divisional Forest Officer dated 14 -9 -1990, annexed as Annaxure -4, is being impugned by the petitioner, inter alia, on the ground that the Divisional Forest Officer is not entitled to raise the demand of Rs. 1,45,124.32 particularly when at all stages the petitioner has approached the forest authorities and cut the trees only after the demarcation being made and the petitioner having been permitted to cut the same.

(2.) THE petitioner's case, in brief, is that after he purchased the disputed trees from the raiyats in April, 1980, he approached the Divisional Forest Officer requesting him to have a joint verification which is necessary prior to issue of Timber Transit Permit. On.5 -6 -1980, the Divisional Forest Officer directed to Revenue Officer to take steps for joint verification, The petitioner again wrote to the Divisional Forest Officer on 29 -10 -1980 to direct the Office Amin for demarcation on 1 11 -1980. On 1 -11 -19*0, the joint demarcation was done by the revenue authorities and forest authorities and a joint demarcation report was submitted. On receipt of the same, the Divisional Forest Officer called for a report from the Revenue Officer which was duly submitted by the Revenue Officer on 6 -1 -1981. Then the Divisional Forest Officer called for the Revenue Officer to take op joint enumeration which was also done on 22 -4 -1981 by the Range Officer and his staff as well as the Tahasildar and his staff and again a report was prepared and trees standing on the periphery line were marked. The raiyats also appended their signatures on the report and then the Divisional Forest Officer assessed royalty for the felling of the trees. On being intimated the petitioner deposited the royalty amount on 13 -5 -1981. The Divisional Forest Officer then wrote a letter to the petitioner for conversion and to register the property mark and apply for necessary permit. The property mark was registered on 22 -5 -1981 and then conversion was made on 21 -6 -1981 in presence of the Assistant Conservator of Forests, Range Officer and Forest Amin. On 27 -6 -1981, the Divisional Forest Officer directed the Assistant Conservator of Forests to issue timber transit permit. While the petitioner had taken only one truck -load, he was prevented from taking any further timber and, on the other hand, was called upon to pay a sum of Rs. 1,45,124. 32 paise which the forest authorities have assessed as compensation/damages. The petitioner then approached this Court in O.J.C. No. 1239 of 1983 and this Court disposed of the matter by requiring the Divisional Forest Officer to dispose of the petitioner's representation. The said representation having been rejected by the impugned order dated 14 -9 -1990, the petitioner has approached this Court. Mr. Sahoo appearing for the petitioner contends that the petitioner having cut and felled the timbers on being shown by the forest authorities after all the formalities required under the rules having been observed, the forest authorities are not entitled to levy any penalty or compensation for alleged illegal felling of the trees in question. He further contends that the impugned ordar is based upon materials which had been collected behind the back of the petitioner like the Tahsildar's report and the petitioner had never any opportunity of showing cause to the same.

(3.) THE impugned order of demand does not indicate as to under which provision of law the demand is being assessed and raised. But learned Additional Government Advocate in course of hearing submitted that in accordance with Section 72 of the Orissa Forest Act, the Divisional Forest Officer has levied the demand and served the same on the petitioner. On examining Section 72 and on scrutinising the impugned order, we are of the opinion that the concerned officer has nowhere indicated the market value of the forest produce in respect of which the alleged forest offence can be said to have been committed so as to levy the demand in question in accordance with Section 72(1)(iii) - of the Orissa Forest Act. That apart, the levy of penalty is purported to have been made on the basis of a finding that the trees had been cut on the basis of an incorrect map submitted by the petitioner, though according to the petitioner, the petitioner had never submitted any map and he had merely requested the authorities to grant him timber transit permit after proper verification and the forest authorities after due checking of the area with the revenue authorities, allowed demarcation and then permitted the petitioner to cut and fell the trees. In the act of cutting and felling of timber, unless any mens rea is established as against the petitioner, the levy of penalty cannot be sustained. From the impugned order, it is absolutely not clear as to how the forest authorities have come to the conclusion that the petitioner has defended or misrepresented the forest authorities and got the permission to fell the timbers in question. We also find sufficient force in the submission of Mr. Sahoo for the petitioner that materials were taken into consideration by forest authorities behind the back of the petitioner of which the petitioner has no notice. The petitioner has never been shown there called report of the Tahasildar which has weighed heavily with the forest authorities to pass the impugned order rejecting the representation of the petitioner, under Annexure -4. In the aforesaid premises, we quash the impugned order under Annexure -4 as well as the levy of demands against the petitioner, but we make it clear that it would be open for the forest authorities to proceed in accordance with law giving sufficient opportunity to the petitioner and establish that the petitioner has been responsible in cutting trees from the Government land by practising fraud or deception on the forest authorities. The writ application is accordingly allowed. There will, how - ever, be no order as to costs. P.C. Naik, J.