1. With consent, heard finally.

2. The present petition under Article 226 of the Constitution of India has been preferred at the instance of petitioner/company being crestfallen by the order dated 24.9.2015 (Annexure P-1) passed by respondent No.4 i.e. Authorized Officer-cum-Sub Divisional Officer Forest, Sub-Division, Gwalior penalty of fine of Rs.10,000/- has been imposed by the petitioner purportedly under section 52 of the Indian Forest Act, 1927.

3. Facts of the case in nutshell are that the petitioner/company vide sale deeds dated 8.2.2010 and 9.2.2010 (Annexures P-2 and P-3 respectively) has purchased land bearing survey Nos.351, 352, 354, 355 and 356 admeasuring area 4.54 hectare in Village Veelpura, Patwari Halka No.31, Tahsil Lashkar, District Gwalior. Name was mutated in the revenue records on the basis of registered sale deeds. Vide order dated 16.4.2013. Sub-Divisional Officer, Gwalior passed the order of diversion in favour of petitioner and thereafter land use of land in question was changed from agricultural to commercial.

4. After taking aforesaid formalities, petitioner started development work over the land in question and, therefore, JCB machine vide Registration No.MP07 DA-0251 was employed for clearing work within the boundary wall standing in the land in question. This clearing work precipitated series of events under which in-charge of Forest, Post Veelpura entered the petitioner's land and enquired about the authority and permission by which petitioner employed JCB machine. He registered a Preliminary Offence Report (P.O.R.) alleging the use of JCB machine in the forest area and petitioner was booked under section 26 of Indian Forest Act for clearing the forest area. The said preliminary report is placed as Annexure P-9. After preparation of preliminary report on dated 16.5.2015, petitioner was served with show cause notice on 6.6.2015 purportedly under section 52 of the Act regarding confiscation of JCB machine. Petitioner submitted reply to the show cause notice under section 52 of the Act and contested the contents. On the other hand, in respect of separate proceeding for offence under section 26 of the Act, respondents entered compromise and thus on the basis of payment of fine, compromise was given effect to and pursuant to said compromise, Conservator of Forest, Division Gwalior passed an order on 11.6.2015 constituting the committee of Revenue Officer and Forest Officer to carry out the demarcation of the area. Report so submitted by the committee concluded that part of Survey No.352 held by the petitioner comes within the purview of forest area and, therefore, petitioner was imposed fine of Rs.10,000/- for the offence under section 52 of the Act. This imposition of fine of Rs.10,000/- was changed over the petitioner instead of confiscating the JCB machine. The said order of imposition of fine passed on 24.9.2015 vide Annexure P-1 is subject matter of challenge in the petition.

5. Learned counsel for the petitioner raised the question of imposition of fine in the proceedings under section 52 of the Act. According to him, section 52 of the Act contemplates confiscation of vehicles and in the said provision either vehicle can be confiscated or not but certainly authority of imposition of fine of is not available to the respondents, therefore, impugned order passed by respondent No.4 is without jurisdiction. The petitioner also contends on merits of the case wherein on the basis of testimony of Forest Guard, Ramkaran Pal, in-charge Forest Chowki Veelpura, Satyaprakash Gaud and Divisional Forest Officer, Smt. Jyoti Chhawaria submits that no notification has ever been issued or published which declares Survey No.352 as forest area because accounting to him sections 3 and 4 of the Act, State Government has power to reserve any forest by notification. Here, no such notification was issued or published to declare the area in question as forest area. Therefore, according to him no offence is made out.