Jharkhand High Court
Jharkhand Ispat Pvt. Ltd; A Company ... vs The State Of Jharkhand Through Its Chief ... on 14 November, 2024
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 957 of 2018
Jharkhand Ispat Pvt. Ltd; a Company registered under the Companies
Act, 1956 through one of its Directors, namely Rajiv Kumar Agrawal,
aged about 45 years, son of Shri Durga Prasad Agarwal, resident of
P.N.Bank, Main Road, Ramgarh Cantt, P.O. & P.S.-Ramgarh,
District-Ramgarh having its Administrative Office near P.N.Bank,
Main Road, Ramgarh Cantt, P.O. & P.S.-Ramgarh, District-Ramgarh,
Jharkhand-829122 and Works at Village & P.O.- Hesla, Argada, P.S.-
Argada, District- Ramgarh, Jharkhand. ... ... Petitioner
Versus
1. The State of Jharkhand through its Chief Secretary Government of
Jharkhand, Project Bhawan, P.Ο. & P.S.- Dhurwa, District- Ranchi.
2. Deputy Commissioner-cum-District Magistrate, Ramgarh, P.O. &
P.S.-Ramgarh, District-Ramgarh.
3. Divisional Forest Officer, Ramgarh Forest Division, P.O. & P.S.-
Ramgarh, District-Ramgarh. ... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Mr. Pandey Neeraj Rai, Advocate : Mr. Rohit Ranjan Sinha, Advocate For the Resp.-State : Mr. Anshuman Kumar, AC to SC (L&C)-II
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16/14.11.2024
1. The learned counsel for the parties are present.
2. This writ petition has been filed for the following reliefs:-
"1. That by means of this application the petitioner prays for :-
(I) Issuance of a writ in the nature of Certiorari or any other appropriate writ (s)/order(s) or direction(s) for quashing the Order dated 13.09.2017 (Annexure-17 )passed by the respondent No.2 in Encroachment Appeal No:06 of 2017 which has been dismissed on the ground of limitation affirming the order dated 24.11.2016(Annexure-
14) passed by the respondent No.3 in BPLE Case No 7 of 2007/BPLE Case No: 5 of 2016 as also the consequential letter No: 36 dated 03.01.2018 issued by the respondent No.3 (Annexure- 20);
And/or for issuance of any such writ(s)/order(s)/Direction(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and for doing conscionable justice to the Petitioner"1
3. The learned counsel drawn attention of this Court to order dated 12.09.2024 wherein certain observations were made. The said order is quoted as under:-
"Order dated 12.09.2024 In pursuance of the last order dated 11.09.2024, Mr. Nitish, D.F.O., Ramgarh Forest is present.
2. It appears that there is encroachment by the petitioner in a forest area by dumping the waste materials. By change of technology, the alleged waste materials have attained the status of raw materials. Some raw materials have been removed. It further appears that thereafter under the environmental law, this petitioner has been assigned the work of developing the green belt around the factory and that work is being done by the petitioner. If the green belt is developed, then there is no requirement of removal of the alleged waste/raw materials. But in the interest of justice, it is required that the green belt should be developed in a proper manner.
3. In view of the above factual matrix of the present case, it is adjourned to be listed on 14.11.2024.
4. The Divisional Forest Officer, Ramgarh Forest Division, who is present in the Court, is directed to prepare a report and file before this Court through affidavit in the meantime.
5. Personal appearance of the concerned D.F.O. is dispensed with for the time being."
4. The learned counsel has submitted that a proceeding under Bihar Public Land Encroachment Act (BPLE Act) was initiated against the petitioner and an order was passed against which an appeal was filed but the appeal has been dismissed only on the ground of limitation. He has also submitted that a petition seeking condonation of delay was filed indicating the relevant dates with regard to receipt/knowledge of the order impugned before the appellate authority but those sequence events and dates have not been properly considered.
5. The learned counsel has further submitted that the proceeding before Divisional Forest Officer (D.F.O.) was concluded on 25.10.2016 but till 13.01.2017 no order was passed and the petitioner came to know about the order on 18.01.2017 and then he applied for 2 certified copy which was supplied to him on 24.01.2017 and thereafter, the appeal was filed.
6. The learned counsel has further submitted that during the pendency of this case much development has taken place. The petitioner has been granted environmental clearance and as to the understanding of the petitioner the so-called allegation of encroachment and direction to remove encroachment/dumping has lost its relevance inasmuch as the environmental clearance has been taken care of.
7. The learned counsel has further submitted that subsequent to passing of the order passed by the appellate authority rejecting the appeal on the point of limitation, a letter dated 03.01.2018 was issued from the office of Divisional Forest Officer, Ramgarh which is contained in Annexure 20 asking the petitioner to deposit certain amount so that the alleged encroachment could be removed. While assailing the aforesaid communication, the learned counsel submits that the question of deposit of any amount by way of cost arises when the State incurs expenses for such removal of encroachment and raises demand after removal of encroachment. He has referred to section 7 of BPLE Act. He has submitted that there could not have been any Ad hoc assessment for the purposes of removal of encroachment. He has also submitted that as of now, as per the understanding of the petitioner, there is no need to remove the alleged encroachment and therefore, the letter dated 03.01.2018 which is a sequel to the dismissal of the appeal has also lost its force.
8. The learned counsel appearing on behalf of the respondents while opposing the prayer of the petitioner has submitted that the appellate authority having dismissed the appeal on the point of limitation had no occasion to enter into the merits of the case. However, he does not dispute that the points raised in the petition for condonation of delay have been considered. He has further submitted that the matter may be remanded to the appellate authority who may consider the case on merit and also take into consideration any 3 subsequent development as pointed out by the petitioner and pass appropriate order taking into consideration all the developments which may have a bearing in the direction to remove the encroachment or dumping under the provisions of BPLE Act.
9. The learned counsel has also submitted that so far as Annexure 20 dated 03.01.2018 is concerned, the same will depend upon the final result of the appellate authority and he has also submitted that after the judgment is passed by the appellate authority, if any action is to be taken against the petitioner, then certainly fresh notice in terms of Section 7 of BPLE Act is required to be given and in such circumstances the matter can certainly be considered by the appellate authority.
10. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the proceeding under BPLE Act was initiated against the petitioner in the court of Collector-cum-Divisional Forest Officer, Ramgarh, Forest Division, Ramgarh and order was passed against the petitioner on 24.11.2016 (Annexure-14) wherein the following findings have been ultimately recorded:
"In view of above discussion and findings I come to conclusion that R.C. Rungta, director of JIPL is solely responsible for encroachment and dumping of coal char on the forest land in question i.e. on plot no 4 and 50 of Hesla P.F Since land of encroachment involved in BPLE case no- 07/2007 was further extended to 8 acre in the same plot no 4 and 50 of Hesla P.F. and thus the area of encroachment and dumping of coal char in BPLE case no-05/2016 already consists of 180 decimal of BPLE case no- 07/2007.
Thus in exercise of power conferred u/s 6 of BPLE Act, 1956 read with section 66A of L.F. Act 1927 R.C. Rungta, Director of JIPL is hereby directed to remove the coal char dumped over an area of 8 acre of plot no -4 and 50 of Hesla P.F. and evacuate the land in question within 15 days of passing the order. If he fails to comply with the said order the amount assessed for removal of dumps will be recovered from R.C. Rungta as per section -7 of BPLE Act 1956.4
With aforesaid order and observation the BPLE case no 07/2007 and case no 05/2016 are disposed off."
11. The petitioner filed an appeal against the said order along with a petition for condonation of delay stating the facts regarding receipt of copy of the order and obtaining certified copy etc. But the appellate authority while dismissing the appeal has simply stated that the appellate authority was not satisfied with the cause shown without making any reference to the sequence of events with regard to knowledge/receipt of the copy of the order passed by the original authority.
12. This Court finds that the order of the appellate authority is non- speaking in many aspect of the matter even a petition for condonation of delay is required to be a speaking order by referring to the facts narrated in the petition for condonation of delay. This Court is also of the considered view that huge stakes are involved in the present case and therefore, one opportunity is required to be granted to the petitioner so that the appeal is ultimately decided on merits.
13. This Court also finds that the petitioner has mentioned about subsequent developments but primarily the petitioner was aggrieved by the orders passed by the authority and the matter can certainly be taken care of by the appellate authority. If there are subsequent development which has a consequence that the petitioner need not remove any encroachment or the so-called encroachment does not survive any more, there is no reason that the appellate authority will not take care of the subsequent developments.
14. Consequently, in order to enabling the appellate authority to consider the case on merits and also take into consideration a subsequent development, if any, which may be brought on record before the appellate authority by filing affidavit with supporting documents/materials, the impugned order dated 13.09.2017 passed in Encroachment Appeal case no. 6 of 2017 is hereby set aside and the matter is remitted back to the Deputy Commissioner, Ramgarh to pass fresh order in accordance with law.
515. The petitioner will file the affidavit regarding subsequent developments etc. The petitioner along with the aforesaid affidavit regarding subsequent developments shall appear before the said appellate authority on 16.12.2024 at 11.00 am and upon appearance, the appellate authority shall call for the records of the connected encroachment case, grant an opportunity of hearing to the petitioner and also the respondent No. 3 and pass appropriate reasoned order in accordance with law.
16. It is also observed that it will certainly be open to the Deputy Commissioner to seek assistance from the Government counsel as environmental issues are also involved in the present case.
17. A fresh order be passed within a period of two months from the date of appearance and a copy of the order be communicated to the petitioner through E-mail at the e-mail id which should be mentioned in the affidavit to be filed by him. The final order be also communicated to the petitioner and also the respondent no.3 through speed post.
18. It is needless to say that upon passing of the appellate order, the authorities shall proceed in accordance with the provisions of BPLE Act.
19. It is further observed that this Court has not gone into the merits of the rival contentions and the appellate authority is free to pass appropriate order on the merits of the case in accordance with law.
20. Accordingly, this writ petition is disposed of.
21. Let this order be immediately communicated to the respondent no. 2 and 3 through speed-post.
(Anubha Rawat Choudhary, J.) Rakesh/-
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