Back
1984 Supreme(MP) 804
High Court Of Madhya Pradesh
P. D. MULYE, V. D. GYANI
KAMLESHKUMAR CHHABRA - Appellant
Versus
STATE - Respondents
M. P. 489 Of 1982
Decided On : 12/03/1984
G.M.CHAPHEKAR, S.KULSHRESTHA, V.S.KOKJE
Statutory power conferred on forest officers is not absolute and can only be used in the right and proper way intended by the Legislature.
Headnote:
FOREST ACT - Discretionary powers of Forest Officers - Limits and scope - Sealing of saw-mill and seizure of timber - Legality - Interpretation of Rule 8 of the M. P. Van Upaj (Vyapar Viniyaman) Kastha Niyam, 1973.
Fact of the Case:
The petitioner, who runs a sawmill in Sendhwa, was required to register himself as a manufacturer, dealer, and trader. He applied for registration in December 1981, but the application was not processed due to instructions from the Government. The petitioner approached the High Court, which directed the Divisional Forest Officer to consider the application. The application was rejected by the Divisional Forest Officer in October 1982. In August 1982, the respondents raided the petitioner's premises and seized the saw-machine and timber, alleging violations of the Forest Act and Rules. The petitioner filed a writ petition challenging the seizure and sealing of the saw-mill.
Finding of the Court:
The High Court held that the statutory power conferred on forest officers is not absolute and can only be used in the right and proper way intended by the Legislature. The Court found that the respondents' actions in sealing the saw-mill and seizing the timber were illegal and without authority of law. The Court also held that Rule 8 of the M. P. Van Upaj (Vyapar Viniyaman) Kastha Niyam, 1973, which provides for the seizure of timber in the absence of a valid sale certificate, cannot be interpreted in a wider context to give the respondents the power to take possession of any stock found in the petitioner's possession. The Court quashed the order passed by the Conservator of Forests declaring the seized property as Government property and directed the respondents to remove the seal from the saw-mill and return the seized goods to the petitioner.
Issues: 1. Whether the respondents' actions in sealing the saw-mill and seizing the timber were legal and authorized by law. 2. Whether Rule 8 of the M. P. Van Upaj (Vyapar Viniyaman) Kastha Niyam, 1973, can be interpreted to give the respondents the power to take possession of any stock found in the petitioner's possession.
Ratio Decidendi: 1. The Court held that the statutory power conferred on forest officers is not absolute and can only be used in the right and proper way intended by the Legislature. The Court found that the respondents' actions in sealing the saw-mill and seizing the timber were illegal and without authority of law. 2. The Court held that Rule 8 of the M. P. Van Upaj (Vyapar Viniyaman) Kastha Niyam, 1973, which provides for the seizure of timber in the absence of a valid sale certificate, cannot be interpreted in a wider context to give the respondents the power to take possession of any stock found in the petitioner's possession.
Final Decision: The Court quashed the order passed by the Conservator of Forests declaring the seized property as Government property and directed the respondents to remove the seal from the saw-mill and return the seized goods to the petitioner.
( 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 been upon 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 Courts 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 m 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 to order 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 Sec. 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 Sec. 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 rea
