2020 Supreme(Guj) 521

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Vipul M. Pancholi, J.
Bhai Jamal Khalid Hussein – Petitioner
Versus
State of Gujarat – Respondent
R/Special Civil Application No. 1668 of 2019
Decided On : 06-07-2020

Headnote:

Constitution of India, 1950 – Article 226 – Wildlife Protection Act, 1972 – Section 39(1)(d) – Forest Act – Section 61(D) – Release of vehicle – Challenged order passed by respondent No.2 by which the vehicle of ownership of petitioner has been confiscated. Petitioner has also prayed that respondents be directed to release vehicle in question of the petitioner forthwith – Petitioner submitted that petitioner is the owner of tempo bearing registration – Petitioner was plying the said tempo on hire through his the purpose of transportation. It is further submitted that the driver engaged by the petitioner had accepted trip to village Unchapan for transporting the kher wood without the knowledge and consent of the petitioner – Held, It is clear that prior to passing of the impugned order by the respondent authority notice under Section 61A(2) of the Forest Act was issued to the petitioner and statement of the petitioner was also recorded. Thus, prima facie, it cannot be said that the impugned order has been passed without following the procedure prescribed under the law or without following the principles of natural justice. However, it is open for the petitioner to take contentions before the Appellate Authority about his signature – It is clear that against the impugned order passed by the respondent authority, petitioner can file an appeal before the Sessions Court under Section 61(D) of the Forest Act and therefore when the statutory alternative remedy is available, this Court is not inclined to exercise powers under Article 226 of the Constitution of India and more particularly when the petitioner has raised the dispute regarding his signature on acknowledgment slip and on his statement. This Court cannot go into the aspect as to whether the signature of the petitioner is correct or not. The said aspects can be examined by the concerned appellate authority – Petition disposed of. (Paras 9 to11)

Facts of the case:

Petitioner is the owner of tempo petitioner was plying the said tempo on hire through his the purpose of transportation. It is further submitted that the driver engaged by the petitioner had accepted the trip to village Unchapan for transporting the kher wood without the knowledge and consent of the petitioner. The concerned respondent authority therefore seized the said vehicle on 23.09.2017 and thereafter issued the notice under Section 39(1)(d) of the Wildlife Protection Act, 1972. Petitioner, therefore, made a representation to the respondent No.2 for release the vehicle in question on presentation of bond. However, the said representation was not considered by the concerned respondent authority and therefore petitioner filed Special Civil Application No.11455 of 2018 for release of the tempo and for quashing and setting aside the seizure order dated 23.09.2017. This Court disposed of the said petition vide order dated 03.10.2018 by directing the respondent authority to decide the representation made by the petitioner.

Findings of the court:

It is clear that prior to passing of the impugned order by the respondent authority notice under Section 61A(2) of the Forest Act was issued to the petitioner and statement of the petitioner was also recorded. Thus, prima facie, it cannot be said that the impugned order has been passed without following the procedure prescribed under the law or without following the principles of natural justice. However, it is open for the petitioner to take contentions before the Appellate Authority about his signature – it is clear that against the impugned order passed by the respondent authority, petitioner can file an appeal before the Sessions Court under Section 61(D) of the Forest Act and therefore when the statutory alternative remedy is available, this Court is not inclined to exercise powers under Article 226 of the Constitution of India and more particularly when the petitioner has raised the dispute regarding his signature on acknowledgment slip and on his statement. This Court cannot go into the aspect as to whether the signature of the petitioner is correct or not. The said aspects can be examined by the concerned appellate authority.

Result: Petition disposed of