- (1.) THIS L.P.A. is admitted.
(2.) LEARNED counsel for the respondents waives notice in admission. I.A. No. 7071 of 2013 1. This Interlocutory application has been preferred by the State of Jharkhand for getting stay against the operation, implementation and execution of the order passed by the learned Single Judge in I..A. No.1000 of 2013 in Writ Petition (Civil) No.3406 of 2012 dated 16th April, 2013. 2. Having heard the counsel for both the sides and looking to the facts and circumstances of the case and also looking to the order passed by the Divisional Forest Officer, District Ramgarh dated 8th August, 2009, in Confiscation Case No.23 of 2005, and also looking to the order passed by the Deputy Commissioner dated 1st July, 2011, in Confiscation Appeal No. 1/2010, as well as looking to the order passed by the revisional authority, Secretary (Forest and Environment) Government of Jharkhand, dated 17th April, 2012, in a Revision Petition No.2/100/2011 and looking to the order passed by the learned Single Judge dated 16th April, 2013, in I..A. No.1000 of 2013 in Writ Petition (Civil) No.3406 of 2012, we, hereby, stay the operation, implementation and execution of the order passed by the learned Single Judge in I..A. No.1000 of 2013 in Writ Petition (Civil) No.3406 of 2012 dated 16th April, 2013 during the pendency and final hearing of this L.P.A., mainly for the following reasons : a) Looking to the facts of the case, it appears that the Forest Officer had seized a truck of the respondents on 14.5.2009 because the truck was carrying approximately 20 tonnes (20,000 K.g.)coal. The coal, prima facie, is a forest produce as defined in Section 2(4) (b)(iv) of Indian Forest Act, 1927. Looking to the order passed by the Divisional Forest Officer, no explanation was given by the person, who was caught red handed with the coal in question. The driver had ran away. The owner has not pointed out the legal custody of this sizable quantity of coal and on the contrary, looking to the order passed by the Divisional Forest Officer, District Ramgarh, it appears that there was illegal excavation of this coal from plot No.1353 of Banda Forest, District Ramgarh. Thus, this is not a case of mere transit of the coal, but the main offence is excavation itself. The transportation and transit of the coal is secondary. Thus, looking to the provisions of Section 33 (b) to be read with Section 2(4)(b)(iv), there is illegal excavation of the sizable quantity of coal, which was never explained before the first authority namely Divisional Forest Officer. The facts have already been established before the Divisional Forest Officer, District Ramgarh, who is the first authority, who has passed the order in Confiscation Case No.23 of 2005 and there is a presumption under Section 69 of the Indian Forest Act that the forest produce belongs to the government, thus, the evidence has to be brought on record by the respondents that the coal in question was in custody of the respondents in accordance of law. On the contrary, there is evidence on record that the person, who was caught red handed with the truck, had pointed out that they have illegally excavated the coal from the place as stated hereinabove and also the said place has been stated in the order passed by the Divisional Forest Officer, Ramgarh, in his order dated 8th August, 2009, in Confiscation Case No.23 of 2005. Thus, the presumption is in favour of the government and for rebuttal of this presumption, no evidence has been produced by the respondents. Moreover, there is a concurrent finding of facts by the Divisional Forest Officer, District Ramgarh, as well as by its appellate authority namely Deputy Commissioner, Ramgarh, as well as by the revisional authority namely Secretary (Forest and Environment), Government of Jharkhand. These constitute a prima facie case in favour of the State of Jharkhand. Moreover, the balance of convenience is also in favour of the State of Jharkhand and irreparable loss will be caused to the State, if the stay, as prayed for, is not granted to the State of Jharkhand. Hence, we, hereby, stay the operation, implementation and execution of the order passed by the learned Single Judge dated 16th April, 2013, in I..A. No.1000 of 2013 in Writ Petition (Civil) No.3406 of 2012.
(3.) LEARNED counsel appearing for the respondents has heavily relied upon the order passed by this Court in Criminal Miscellaneous Petition No.853 of 2005 dated 11th September, 2009 (annexure 2 to this memo of the Letters Patent Appeal). As the Letters Patent Appeal is already pending for its final hearing, we are not much going into the detail as to how this decision is not applicable to the facts of the present case. Looking to the aforesaid provisions of the Indian Forest Act, 1927, suffice it to say that looking to the paragraph no.4 of the decision in Criminal Miscellaneous Petition No.853 of 2005, the decision was rendered as stated in paragraph no.7, the main argument appears to have been canvassed in Criminal Miscellaneous Petition is for the transit of the coal, whereas as stated hereinabove, there is illegal excavation of the coal as per the order passed by the Divisional Forest Officer, District Ramgarh. The transit of coal is secondary. Once there is illegal mining operation, the coal which is excavated, is bound to be transported. Thus, looking to the provisions of Section 33(b) to be read with Section 2(4) (b)(iv) to be read with Section 69 of the Indian Forest Act, 1927, there is a prima facie case in favour of this appellant. The balance of the convenience is also in favour of these appellants and irreparable loss will be caused, if the stay, as prayed for, is not granted. Counsel appearing for the State has also heavily relied upon the decision of the Hon'ble Supreme Court in the case of State of W.B. Vrs. Gopal Sarkar, 2002 1 SCC 495, and has submitted that if the arguments canvassed by the learned counsel for the respondent is allowed by this Court, perhaps, not a single truck with illegal coal can be seized and confiscated by the State of Jharkhand.;