AZIZ AHMED KHAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) The petitioner who is the owner of a vehicle bearing registration No. MZ-01D/4521 by the present petition has challenged the order of confiscation dated 09.10.2007 passed by the Divisional Forest Officer, Karimganj Division, Karimganj (Respondent No. 3) in Forest Case No. PK/05 of 2007-08 of Patharkandi Range, basically on the ground of violation of the principles of natural justice and prayed for re-hearing of the said Forest Case by any other competent authority other than the Respondent No. 3, in compliance of the provisions of the Assam Forest Regulation, 1891 (in short, the Regulation).

(2.) The case of the petitioner in the writ petition is that on 16.06.2007 he received a notice from the Patharkandi Forest Range Office intimating him that the aforesaid truck was seized by the said authority as the same was found loaded with few bundles of fire wood on 14.06.2007, in response to which he submitted his reply on 26.06.2007 intimating the authority that the driver of the truck was carrying the said goods illegally and without his permission and requested the authority to release the truck. As the vehicle in question has not been released, the petitioner filed another application before the DFO, Karimganj on 03.07.2007 praying for release of the said truck under the provisions of Section 49(A) of the Regulation. As no action was taken by the DFO on the said application, the petitioner approached this Court in WP(C) No. 3486/2007, wherein this Court vide order dated 20.08.2007 directed the DFO to assess the present value of the truck and thereafter on furnishing adequate security for the truck to the satisfaction of the DFO having regard to the value thereof and also on execution of an undertaking to produce the truck as and when required, to release the same in favour of the petitioner. Though by the said order the DFO was directed to assess the value of the truck within a week from the date of receipt of the certified copy of the order, but no action has been taken by the DFO in spite of receipt of the certified copy and only vide communication dated 29.09.2007 the DFO informed the petitioner about assessment of the value of the truck at Rs. 8,25,000/- and asked to take interim custody of the same by furnishing an irrevocable bank guarantee of the said amount. Such direction, according to the petitioner, being not reasonable, he filed an application before the DFO on 04.10.2007 intimating that it is not possible on his part to furnish any irrevocable bank guarantee and prayed for releasing the vehicle after accepting the land security offered by his brother which was, however, rejected by the DFO vide letter dated 05.10.2007. The petitioner thereafter approached this Court again in WP(C) No. 5515/2007 and this Court vide order dated 15.10.2007 directed the DFO to release the truck without insisting for bank guarantee and on furnishing other security as well as on execution of bond offered by the petitioner. According to the petitioner, in spite of such direction the vehicle was not released. The further case of the petitioner is that the DFO, in the meantime on 05.09.2007, issued a notice fixing the aforesaid Forest Case for hearing on 26.09.2007, on which date an application was filed through his brother seeking adjournment for 30 days, on the ground of his suffering from Viral Hepatitis-C, enclosing therewith a medical certificate issued by the attending doctor. Accordingly, the adjournment was granted till 04.10.2007, on which date another prayer for adjournment of the case was made as he could not attend the hearing because of his illness, but the DFO without considering the prayer of the petitoner for adjournment upto 22.10.2007 fixed the case on 09.10.2007 for hearing and on that day the order of confiscation was passed, thereby depriving the petitioner from the right of hearing as contemplated under Sections 49(5) and 49(6) of the Regulation as he has not been given effective hearing and the opportunity to satisfy the authorized officer that the truck was used without his knowledge or connivance or abatement. The further case of the petitioner in the writ petition is that he having not been informed about the materials sought to be relied upon in the confiscation proceeding by the authorized officer, his right to have an effective opportunity of hearing has been violated and consequently the procedure laid down in Section 49(5) of the Regulation has also been violated. The petitioner further contended that since the order of consfication was passed in violation of the procedure laid down in Section 49 of the Regulation and also in violation of the principles of natural justice, though there is alternative remedy available to him by way of review as well as statutory appeal u/s 49(B) and 49(C) of the Regulation, respectively, this Court may not insist for exhausting the alternative remedy first, before approaching this Court under Article 226 of the Constitution of India.

(3.) The case of the respondents as reflected in the affidavit-in-opposition filed is that the petitioner was given the opportunity as required u/s 49(5) as well as u/s 49(6) of the Regulation as he was issued with the notice of initiation of the confiscation proceeding as well as the opportunity to prove that the truck was not used by the driver with his knowledge, connivance or abatement and though the petitioner on receipt of such show cause submitted his representation and the case was adjourned till 09.10.2007, he did not participate in the proceeding on the said date and no application for adjournment was also filed, therefore, the case was heard and decided in his absence and the confiscation order was passed in accordance with the provisions of the Regulation. It has further been contended by the respondents in the affidavit-in-opposition that on receipt of the order dated 20.08.2007 passed by this Court, the DFO on 31.08.2007 requested the District Transport Officer, Karimganj to assess the value of the truck, who in turn, only on 28.09.2007 submitted the assessment report to the DFO and accordingly on 29.09.2007 informed the petitioner about the assessment made by the DTO, Karimganj and to take the interim custody of the vehicle by furnishing irrevocable bank guarantee to the tune of Rs.8,25,000/- which the petitioner had declined. It is the further case of the respondents that though an application for accepting the land security was filed, the same was rejected by the DFO vide order dated 05.10.2007 and this Court though passed an order on 15.10.2007 in WP(C) No. 5515/2007, the same could not be implemented, as the final order of confiscation has already been passed on 09.10.2007. According to the respondents, the petitioner with a view to delay disposal of the confiscation proceeding has initially filed an adjournment application and thereafter did not participate in the proceeding on the date fixed i.e. on 09.10.2007. The further stand in the affidavit-in-opposition is that there being adequate alternative remedy available by way of review as well as statutory appeal u/s 49(B) and u/s 49(C) of the Regulation, this Court may not entertain the writ petition filed by the petitioner challenging the order of confiscation dated 09.10.2007.