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Kamleshkumar Chhabra Vs. State of M.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberM.P. No. 489 of 1982
Judge
Reported inAIR1985MP130; 1985MPLJ72
ActsForest Act, 1927 - Sections 52 and 66; Madhya Pradesh Van Upaj (Vyapar Viniyaman) Kastha Niyam, 1973 - Rule 8
AppellantKamleshkumar Chhabra
RespondentState of M.P. and ors.
Appellant AdvocateG.M. Chaphekar and ;V.S. Kokje, Advs.
Respondent AdvocateS. Kulshresthta, Govt. Adv.
DispositionPetition allowed
Cases ReferredKishinchand Chellaram v. C.I.T.
Excerpt:
- - 1. this petition poses a problem as to how best suitable balance should be struck between the statutory executive power and legal protection to the citizen. it goes without saying that legislature can never be taken to have intended to give any statutory body or authority a power to act in bad faith or a power to abuse its powers. 2 in refusing to consider the application on the ground that he has no authority to do so has failed to discharge the duty vested in him by law. the petitioner's grievance is that the respondents while acting in that manner as they did knew fully well that what they were doing was clearly illegal, as according to the petitioner the highhanded action on the part of the respondents was only to harrass and to teach him a lesson for having approached this.....v.d. gyani, j.1. this petition poses a problem as to how best suitable balance should be struck between the statutory executive power and legal protection to the citizen. modern government demands discretionary powers, which are as wide as they are numerous. it is the attitude of the courts to such seemingly unbounden powers, which is perhaps the most revealing feature of an executive administrative authority. in this connection the first requirement is the recognition that all power has legal limits. the next requirement, no less vital is that courts should draw those limits in a way which strikes the most suitable balance between executive power and legal protection extended and available to the citizen. it has beenupon public authorities is not absolute, even within its apparent.....
Judgment:

V.D. Gyani, J.

1. This petition poses a problem as to how best suitable balance should be struck between the statutory executive power and legal protection to the citizen. Modern Government demands discretionary powers, which are as wide as they are numerous. It is the attitude of the Courts to such seemingly unbounden powers, which is perhaps the most revealing feature of an executive administrative authority. In this connection the first requirement is the recognition that all power has legal limits. The next requirement, no less vital is that Courts should draw those limits in a way which strikes the most suitable balance between executive power and legal protection extended and available to the citizen. It has beenupon public authorities is not absolute, even within its apparent boundaries, but is subject to general legal limitations. It goes without saying that Legislature can never be taken to have intended to give any statutory body or authority a power to act in bad faith or a power to abuse its powers. It is for the Court to see that the power is being exercised within the scope of the statutory authority given by the Legislature. Be it discretionary, for discretion is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections: for as one saith, talis discretio discretionem confundit.

2. The common theme of all the judgments and passages quoted therein is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, not absolutely -- that is to say, it can validly be used only in the right and proper way which Legislature when conferring it is presumed to have intended. Although the Government lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms. It is with this preface, which was felt necessary the problem posed by the present petition is approached and examined in its numerous facets.

3. The petitioner, who is running a sawmill in Sendhwa, district Khargone, is of necessity required to use the raw-material, forest-wood and timber for running his business and for that purpose the law enjoins upon him to get himself registered as a manufacturer, dealer and trader and he in fact had applied for the same in the month of Dec., 1981. It is admitted by the respondents that this application made by the petitioner was in view of the instructions of the Government not decided by the Divisional Forest Officer thinking that the power was taken away by the Government'. However, on being directed by this Court in Misc. Petition No. 149 of 1982, the said application has been duty considered by the Divisional Forest Officer, Barwani and has been rejected by his order D/- 15-10-1982. It would not be out of place toorder dated 26-8-1982, passed in Misc. Petition No. 149 of 1982 :

'Para 6. The respondents have not filed the original memo in the court. It is also not stated as to in exercise of what powers the said memo has been issued by the Secretary to the Government. Under the rules, which have the force of the law, the respondent No. 2 is authorised to register a person as a manufacturer under Section 11 of the Act. By an administrative order the respondent No. 2 cannot be divested of the said statutory power. In the circumstances the respondent No. 2 being the authority empowered to register a person as a manufacturer under Section 11 of the Act was duty bound to consider the application of the petitioner for that purpose and the respondent No. 2 in refusing to consider the application on the ground that he has no authority to do so has failed to discharge the duty vested in him by law.'

It is really shocking to note that an authority should have thought it proper to act in accordance with the instructions of the Government rather than the law itself.

4. It was on an undertaking given by the respondents in the aforesaid Writ Petition on 6-5-1982 that the seal from the saw-mill was removed and hardly within three months of this undertaking given by the respondents and during the pendency of the aforesaid petition, they (respondents 2 to 5) descended upon the premises of the petitioner and ransacked the entire premises'. On this point the respondents (sic) and that on 3-8-1982 during Inspection It was found that the petitioner was abusing the undertaking given by the respondents in that writ petition, in that he was again committing violation of the Act and the Rules by continuing manufacturing activities in the said saw-mill and, therefore, action was taken against the petitioner under the provisions of the Act and the Rules.' 'The respondents further contended that the petitioner was found converting the specified forest produce in his said saw-mill, with the result that he was committing violation of Rule 27(2) of the Madhya Pradesh (Forest Produce) Transit Rules, 1961, and Rules 7(4), 8, 9 and 9(11) of the Madhya Pradesh Van Upaj (Vyapar Viniyaman) Kastha Niyara, 1973, punishable under the provisions of the Forest Act, 1927. It is also contended that the very installation of the saw-mill itself was in violation of the provisions of Rule 27(2)of the M P (Forest Produce) Transit Rules1961. It is admitted by the respondents that the saw-machine was seized under the provisions of Section 15 of the M. P. Van Upaj (Vyapar Viniyaman) Kastha Niyam, 1969 and Section 52 of the Indian Forest Act, 1927. It is contended on their behalf that as in all cases of seizure, the machine was sealed and since arrangements were required to be made to take the machine into custody after its seizure, the same was left in the premises in sealed condition pending such arrangements. It is also admitted that not only the machine but the timber, which was the specified forest produce and was found in possession of the petitioner was also seized as the petitioner was unable to produce the registration, as required under Section 7(4) of the M. P. Van Upaj (Viniyaman) Kastha Niyam, 1973, and the requisite sale-certificate under Rule 8 of the said Rules regarding the source from which he had acquired that timber.

5. The petitioner's grievance is that the seizure was not in accordance with law and no report of the same was made to any Magistrate. The respondents, however, in their return dated 30-10-1982 contended that report of the seizure had already been made to the Magistrate having jurisdiction under the provisions of Section 52 of the Indian Forests Act, 1927. It is further added that the matter was pending investigation and a show-cause notice had already been issued to the petitioner to produce the requisite certificate etc., if he had any. It is also submitted that on completion of the investigation the case would be put up before the authority for filing of a prosecution, if necessary. The petitioner's grievance is that the respondents while acting in that manner as they did knew fully well that what they were doing was clearly illegal, as according to the petitioner the highhanded action on the part of the respondents was only to harrass and to teach him a lesson for having approached this Court in Misc. Petition No. 149 of 1982. Although the respondents deny any such intent on their part, it is submitted by them that although it is not necessary to report the seizure to the Magistrate, yet in the present case report has been sent to the Magistrate having jurisdiction', without specifying the date of sending such report in the return filed on 30-10-1982. It is also their contention that since in the earlier petition the sealing of the saw-mill was held to be improper, 'they in order to avoid any complications had removed

6. On going through the petition it appears that the petitioner has loosely used the term 'Saw-mill' and the respondents, therefore, appear to have taken fullest advantage of the same in the return filed by them, as in the earlier petition it was the saw-mill, which was sealed and in the present one it is the saw-machine, which though admitted to have been sealed, the sealing is sought to be justified by the respondents in view of Section 66 of the Indian Forests Act, 1927. It is, therefore, contended that under the provisions of this Section in order to prevent commission of the offences, saw-mill established and saw-machine installed for the commission of the offences can otherwise be seized and/or sealed. This action of sealing the saw-mill was sought to be justified under Section 41(2)(h) of the Indian Forests Act, 1927, as averred in their returns and Section 52 of the Forests Act appears to have been referred to during the course of arguments in the earlier petition. Both these points have been dealt with by this Court in its order dated 26-8-1982 and they are reproduced below, so as to appreciate the respondents' action and their contentions:

'Para 7-- As regards the second question, the respondent No. 2 admitted that he had sealed the saw-mill of the petitioner. It was for him to justify his action. In the return the respondent No. 2 has justified his action on the ground that under Section 41(2)(h) of the Indian Forests Act he has the power to seal the petitioner's saw-mill A bare reading of Section 41(2)(h) of the said Act reveals that it does not confer any such power on the respondent No. 2. Section 41 of the said Act confers powers on the State Government to frame rules to regulate transport of the forest produce. No Rule empowering the respondent No. 2 to seal the petitioner's saw mill was brought to our notice.'

'Para 8-- The learned counsel appearing for the State referred to Section 52 of the Forest Act in this connection. However, Section 52 of the Act empowers a Forest Officer or a Police Officer to seize the forest produce, implements etc., if he has reason to believe that an offence has been committed in respect of the forest produce. In such a case the seized property has to be sent to the Magistrate having jurisdiction in the matter. In the present case it is not the case of the respondent No. 2 that he had seized the saw-mill in exercise of powers under Section 52 of the Indian Forest Act Theseized property has also not been reported to the Magistrate. In that case the petitioner could have moved the Magistrate for the custody of the property. No other provision of law is shown to us which empowers the respondent No. 2 to seal the petitioner's saw mill'

This Court has in most uncertain terms held the respondents' action of sealing as illegal and without the authority of law. It appears possible that the respondents have now, therefore, referred to Section 66 of the Indian Forest Act as the source of authority for their persistence in the actions, which have by now become the subject-matter of two successive writ petitions and have already been condemned as illegal and unauthorised in the earlier one. Whether Section 66 of the Indian Forest Act invests the respondents with this power will be dealt with later on. But what is clear is that the action is still sought to be justified by the respondents.

7. In the series of events the show-cause notice dated 3-10-1982 (Annexure-R/10) issued by the Conservator of Forests, Khandwa, wasreplied by the petitioner on 16-10-1982 and the said Conservator passed an order dated 12-4-1983 (Annexure-I), which has been filed along with his supplementary affidavit dated 27-4-1983. The Conservator has declared theseized property as the Government property. It is to be noted that the show-cause notice inthis behalf was issued by the Conservator only after the respondents 2, 3, and 5 had already been served with a show-cause notice and respondent No. 4, the Sub-Divisional Officer(Forests), Sendhwa, was avoiding service asper the report dated 13-9-1983, submitted by the Process-Server. It is borne out from the report that after acquiring the knowledge of this petition the show cause notice, Annexure R/10, was issued by the Forest Conservator, Khandwa. In view of this order dated 12-4-1983 the petitioner had to rush to this Courtfor an interim writ seeking to restrain therespondents from auctioning the property Iseized on 3-8-1982.

8. Before proceeding to deal with the various provisions of the Forest Rules, referred to in the Return, though not pressed into service at the time of arguments, it is necessary to consider the information about seizure of property sent to the Magistrate concerned. As required by Section 52(2) of the Forest Act, this report is required to be sent 'as soon as may be', which cannot be so construed as to cover a period of weeks or months. It must be done with all promptitude, curtailing the time gap between the seizure and the report to the minimum. Controversy, which surrounds the making of a report, in this case, calls for consideration of yet another aspect of the same matter. The petitioners all along maintained that no such report as required by Section 52(2) of the Forest Act has been made to the Magistrate having jurisdiction. The respondents in their return neither specify the date of making such a report, nor produce any document along with the return so as to show that such a report had in fact been made. It appears that on 8-8-1983, at the time of final hearing this point was pressed by the petitioners inviting court's attention to the averment made in the return and the respondents were directed by a specific direction to that effect. However, they failed to produce the same for almost over a year after the direction. The order sheet dated 8-8-1983 clearly indicates that the respondents were directed to file the certified copy of the report made to the Magistrate on or before 22-8-1983 on which date, the case was again fixed for final hearing and the Deputy Government Advocate was also directed to keep ready the original record pertaining to seizure in question. It is on 6-7-1984 the respondent No. 2 came out with an affidavit that the certified copy of the report sent to the Magistrate could not be obtained as the same was not traceable in the Court. Conspicuously enough, the date of having despatched such a report is not mentioned even in the affidavit, which has been verified to be true on personal knowledge based on information derived from official record. On 2-7-1984 time was sought for complying with the Court's order dated 8-8-1983. A, Godown Keeper's affidavit dated 19-8-1983, bearing court-fee stamp of Rs. 5/-, sworn before the Naib-Tahsildar, Sendhwa, has been placed on record along with the affidavit of respondent No. 2, in order to show that on 5-10-1982 the Range Forest Officer, Sendhwa had given an open letter (purporting to be the report about seizure an example how official business is transacted) to be delivered to the Magistrate at Sendhwa. Surprisingly enough the Range Forest Officer, Sendhwa, who is a party, as respondent No. 5, does not come forward with any such statement on oath and it is the Godown Keeper, whoswears an affidavit for being produced in this Court. Competency of a Naib-Tahsildar to administer oath and attesting an affidavit apart, it does not stand to reason as to why the same was not produced before this Court for about a year, and when it was so available on record, why the return and the earlier affidavits should not mention the date of making such a report. This affidavit dated 19-8-1983, sworn by the Godown Keeper, has not been verified at all in the sealed endorsement made thereon. The words 'Shapath Purvak Kathan Kama Swikar Kiya- - - - 'Swikar Kiya' has been struck off.

9. On 16-7-1984 in yet another application with a carbon copy of the so-called report sent to the Magistrate, it is stated that the carbon copy bears an endorsement of the receipt thereof by the clerk of the Court. There is no affidavit to the effect either by the Clerk or by the Officer incharge of the case. This letter at the top provides for serial number, date, but they are left blank. The endorsement put by the clerk of Court is not the usual practice. There is yet another date '26th Nov., 1982' with another endorsement 'Prapta' - but it has not been explained. As against this endorsement, said to have been made by the clerk of Court, certified copy of the orders on the application for certified copy made by the Divisional Forest Officer on 16-8-1983, no copy could be supplied, as there was no record. Hence the copying application was rejected. In these circumstances, the way the respondents have chosen to act in this behalf, is really disgusting and the affidavits sworn by them, to say the least, is not inspiring of any confidence.

10. Whether a report, as contemplated by Section 52(2) of the Forest Act has been made, is not that important as the method, and manner in which it is sought to be established that it was so made Swearing affidavits is a serious matter and the officers of the State Government, such as the respondents, can be so oblivious to it is really a matter of surprise and the way in which the affidavits have been handled by them leaves us in no manner of doubt that these affidavits are an afterthought

11. Section 66 of the Forest Act has been referred to in the return for justifying the sealing, but has not been pressed into service at the time of arguments. Therefore, suffice it to say that this Section does not empower theofficers or servants of the Forest department to seal either the saw-mill or the saw-machine. Sealing, as contended by the respondents in their return being a concomitant of seizure, which is covered by Section 52 of the Act, by necessary implication excludes the applicability or invoking the aid of Section 66 for justifying the sealing. Even with regard to Section 52 it is to be noted that it is only such property which is liable to confiscation and in respect of which there is reason to believe that a forest offence has been committed, that such forest produce can be seized along with ail the tools, articles or vehicles employed in committing the forest offence. The purpose of making a report to the Court having jurisdiction to try the offence is to enable the person from whom the property is seized to move the Court for necessary relief. As stated earlier, it cannot be said that the Legislature while conferring such power of seizure intended to deprive the person of seeking his remedies in the Court of law. The power conferred is to be exercised strictly within the permissible limits prescribed by law. It certainly does not mean the abuse of power. The report required to be made to the Magistrate is with a purpose to enable the person deprived of property to move the Court for the release of the property, if he so desires. The manner in which this aspect of the matter has been dealt with by the concerned Forest Authorities, to say the least, is not merely extremely unsatisfactory but also defeating the very intent of law.

12. Although numerous provisions such as Rules 7(4), 8(9) and 9(11) of the M. P. Van Upaj (Vyapar Viniyaman) Kastha Niyam, 1973, Rule 27(2) of the M. P. (Forest Produce) Transit Rules, 1961, Section 15 of the M. P. Van Upaj (Vyapar Viniyaman) Kastha Niyam, 1969 and Section 52 of the Indian Forest Act (sic). But the learned Government Advocate appearing for the respondnets has confined his arguments to Rule 8 of the M. P. Van Upaj (Vyapar Viniyaman) Kastha Niyam, 1973, apparently for the reason that the other provisions do not enable the respondents to justify their acts and the order passed by the Conservator of Forests, Khandwa. All other provisions, as referred to above, have their respective prescribed penalties under respective Acts or Rules, which do not include the penalty of declaring the property seized as Government Property.

13. In this view of the matter what remainsto be considered is the applicability of Rule 8 of the M. P. Van Upaj (Vyapar Viniyaman) Kastha Niyam, 1973, as urged by the learned Government Advocate, which is the main plank of his argument. It has been submitted by him that this Rule should be interpreted in a wider perspective, keeping in view the policy of the Government, namely, monopoly in the trade of forest produce. Shri Chaphekar, learned counsel appearing with Shri V. S. Kokje, for the petitioners on the other hand submits that such a construction and interpretation of the Rule is not permissible under the law and keeping in view the well-established principles of interpretation. Whenever a statute prescribes a penalty curtailing, abridging or depriving civil rights, it is a well-settled principles of interpretation to strictly construe such provision of law providing for such abridgment, curtailment or deprivation of rights. Rule 8 of the M. P. Van Upaj (Vyapar Viniyaman) Kastha Niyam, 1973, is one such Rule and is reproduced hereunder:

'R/8. Certificate of Sale:- The State Government or its authorised officer, who sells or delivers the specified timber to the purchaser shall grant him a certificate of sale in Form G. If the sale certificate is lost or mutilated a duplicate copy shall be issued by the concerned Divisional Forest Officer, on payment of Rs. 5/- after due verification. Any person, who claims to have purchased the specified timber from the State Government under Section 12 shall, on demand by a Forest or Police Officer not below the rank of Assistant Sub-Inspector produce such certificate of sale in support of his claim, failing which his claim shall not be accepted and such stock which he claim to have purchased from the State Government, if not supported by a certificate of sale, shall be deemed to be the property of the State Government and may be taken possession of by a forest or Police Officer : Provided that if such person produces within fifteen days of the taking possession of such specified timber by a Forest or a Police Officer before the Divisional Forest Officer an evidence to the satisfaction of the said Divisional Forest Officer in support of his having purchased such stock from the State Government, the timber so taken possession of by the Forest or Police Officer, shall be released by the Divisional Forest Officer.'

14. Learned Government Advocatesubmits that while interpreting this Rule the Legislature intended to create a monopoly in timber trade, should not only be kept in view but should be honoured as well According to him no person can possess specified forest produce in excess of the prescribed limit without a lawful authority and must be in a position to justify such possession whenever called upon to do so. In gist, his submission is that in absence of a valid document, no possession of the specified timber produce can in law be allowed to remain with any person. I am afraid, whether such a wide proposition can be laid down while interpreting Rule 8. He has referred to A.P.S.T. Cooperative Finance Dev. Corpn. v. B. Pundiah, AIR 1983 SC 1290 and Orissa Minor Oil (P) Ltd. v. State AIR 1983 Orissa 265. The Supreme Court case goes to uphold the State monopoly in the matter of trade in minor forest produce. There is no challenge to the State monopoly in trade of forest produce. The challenge is to the actions of the respondent. Therefore, this case does not help the State. The Orissa case relied upon by the learned Government Advocate holds the provisions of Section 5(1)(a) of the Orissa Forest Produce (Control of Trade) Act, 1981 creating monopoly in favour of the Government in respect of specified forest produce in Notified areas and, therefore, the Court declared this provision as not ultra vires. The present petition does not even remotely touch the question of vires.

15. Shri Chaphekar on the other hand has referrd to A. C. Sharma v. Delhi Administration AIR 1973 SC 913, at p. 917, wherein the following observations have been made by their Lordships :

'Statement of objects and reasons for introducing a Bill in the Legislature is not admissible as an aid to the construction of the statute as enacted : far less can it control the meaning of the actual words used in the Act. It can only be referred to for the limited purpose of ascertaining the circumstances which actuated the sponsor of the Bill to introduce it and the purpose of doing so. The preamble of a statute which is often described as a key to the understanding of it may legitimately be consulted to solve an ambiguity or to ascertain and fix the meaning of words in their context which otherwise bear more meanings than one. It may afford useful assistance as to what the statute intends to reach, but if the enactment is clear andunambiguous in itself then no preamble can vary its meaning.'

and, Y. A. Mamarde v. Authority under M. W. Act, AIR 1972 SC 1721, which lays down that 'preamble though a key to open the mind of the Legislature cannot be used to control or qualify the precise and unambiguous language of the enactment.' He has also referred to State of Rajasthan v. Mrs. Leela Jain AIR 1965 SC 1296, wherein their Lordships said :

'Unless the words are unmeaning or absurd, it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statute on the very elusive ground that to give them their ordinary meaning leads to consequences which are not in accord with the notions of propriety or justice entertained by the Court.'

It is clear from these principles of law laid down by the Supreme Court that the preamble to the Act cannot be brought in aid while interpreting a Rule of which the language itself is clear. The Rule cannot be so interpreted as to give effect to the preamble of the Act. So far as Rule 8 is concerned, according to Shri Chaphekar, learned' counsel appearing for the petitioner, it is an innocuous provision in itself and it operates in the limited sphere. When any person, who claims to have purchased the specified timber from the State Government under Section 12, shall on demand by Forest or Police Officer, not below the rank of an Assistant Sub-Inspector, produce such a certificate of sale in support of his claim, failing which his claim shall not be accepted and such stock which he claims to have purchased: from the State Government, if not supported by a certificate, shall be the property of the State Government and may be taken possession of by Forest or Police Officers, The question that arises for consideration is whether the petitioner advanced such claim to have purchased the specified timber seized from his premises. It is only then that the question of production of a sale certificate will arise. The Section itself is very clear. In the words 'any such stock which he claims to have purchased from the State Government', the adjective clause 'which he claims to have purchased' qualifies such stock which he might have purchased from the State Govt. Section 12 refers to disposal of the specified produce by the Government and empowers the Government or its officers or agents under this Act to sell or otherwise dispose of thespecified forest produce in such manner as the Government may direct. Such stock 'Which he claims to have purchased' cannot be so interpreted and extended to every article and everything which is found in possession of a person.

16. Tn this view of the matter now the so-called show-cause notice (Annexure-R/10) is required to be considered. A mere reading thereof goes to show that there is no claim advanced by the petitioner so as to attract Rule 8. The order passed after this show-cause notice is Annexure-I, which has been filed by the petitioner along with his supplementary affidavit dated 27-4-1983. This Order passed by the Conservator of Forests, Khandwa, refers to various items and the numerous lapses alleged to have been committed by the petitioner. None of them is such which can be legitimately brought within the purview of Rule 8, referred to above. Paragraphs 4, 5 and 6 refer to certain inquiries made by the Assistant Divisional Forest Officer, Sendhwa and on the basis of his report an order proceeds to penalise the petitioner. The show-cause notice (Annexure-R/10) does not refer to any such inquiries and reports made by the Asstt. Divisional Forest Officer, Sendhwa. The petitioner had in fact in his reply (Annexure-R/IP to the show-cause notice submitted that as his record had been seized by the Sales-tax department, he could not satisfactorily place all the material before the authority. He had also ventilated his apprehension that as he had filed an earlier petition the authorities were out to harass him. Be that as it may, the fact remains that no reasonable opportunity was given to the petitioner against the show-cause notice, Annexure-I, and as if it was not enough extraneous material such as the investigations made by the Asstt. D.F.O. Sendhwa have been relied upon by the Conservator of Forests, as is apparent from the order, Annexure-I. It is pertinent to note here that the Supreme Court in Kishinchand Chellaram v. C.I.T. AIR 1980 SC 2117 has held that when the Income-tax Officer was relying on a letter said to be written by the Manager of a Bank in reply to a query of the I.T.O. stating that the assessee sent a certain sum by telegarphic transfer, it was essential to show the Bank's letter to the assessee so that he could controvert the statements contained in it by asking for an opportunity to cross-examine the Manager ofthe Bank with reference to the statement made by him/ It would be seen that it is against the essential elements of natural justice to use extraneous material against which the person proceeded against has no opportunity to controvert and/or rebut the evidentiary material used against him. The order suffers from a vice not curable. Although it is stated in Annexure-R/1, that an opportunity to adduce evidence on 22-10-1982 was given to the petitioner but he had already expressed his inability to do so in view of the seizure of records by the Sales-tax department a fact admittedly known to the respondents. In such circumstances it cannot be said that a reasonable opportunity to meet the allegations contained in the show-cause notice was afforded to the petitioner. It is high time that the administrative authorities exercising powers under statutory provisions should realise whether they are issuing a show-cause notice why a certain action should not be taken or are communicating the reason for decisions, it is not sufficient merely to recite the language of the statutory provisions but it is also necessary that the actual facts on which action is proposed to be taken or on which the decision is based should also be stated or indicated.

17. The show-cause notice (Annexure-R/10) does not even remotely indicate the reports obtained from the sales-tax department on investagations made by the Forest Officer. This extraneous considerations vitiates the result, i.e. the order, Annexure-R, 1.

18. On perusal of Rule 8 which has been made the main plank of arguments for justifying possession of the property, it appears that the words used are '............ shall bedeemed to be the property of the State Government' and 'may be taken possessionof by a forest or a Police Officer'. The words'may be taken possession of are not without any meaning or purpose. The legislature appears to be alive to the use of such permissive or mandatory words as 'may' or 'shall' in this very Rule itself. The word 'shall' has been used in different places for different purposes, while for taking possession the word used is 'may'. Whether this power of taking possession is an absolute mandatory one or mere permissive, the language employed requires consideration. Whether a power expressed in merely permissive language is accompaniedby a duty to exercise it in certain circumstances required consideration of the whole statutory context in which the power is given. The context so far as R, 8 is concerned, is explicit and it is only in case of purchase of specified forest produce from the Government that the purchaser shall on demand produce the sale certificate. The property, in absence of such certificate, shall be deemed to be the property of the State Government, i.e. it is a question of taking possession of by a Forest or a Police Officer and the Legislature advisedly uses the word 'may be taken possession of. This contextual reference should not be lost sight of even while interpreting the Rule in the wider context of creating monopoly in favour of the State Government in respect of specified forest produce. The interpretation of permissive language as mandatory, in certain circumstances, can only be inferred if it is assisted and qualified by words in the context, such as 'unless sufficient cause is shown to the contrary' or (unless otherwise claimed or if satisfied that there is proper ground for doing so'). A public authority's power to proceed in exercise of its duty is well-defined under Rule 8 itself and the use of merely permissive language with regard to taking possession, can and should not be interpreted as one casting a mandatory duty.

19. For the reasons aforesaid, the order dated 12-4-1983, passed by the Conservator of Forests, Khandwa and filed by the petitioner as Annexure-I, is found to be liable to be quashed and is accordingly quashed. The petition succeeds and is allowed with costs. The respondents are directed to remove the seal put on the saw-Mill and/or Saw-Machine and return all the goods seized on 3-8-82, to the petitioner. Counsel's fee Rs. 250/-, if certified. The outstanding amount of the security deposit after verification, if any, shall be refunded to the petitioner.


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