Patna High Court
Meena Devi vs The Union Of India And Ors on 8 September, 2023
Author: Harish Kumar
Bench: Harish Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.2186 of 2018
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Meena Devi, W/o Late Arun Kumar Mishra, Proprietor of J.B. and Sons,
Resident of Badi Durga Asthan, Ward No.-3, Police Station- Rosera, District-
Samastipur.
... ... Petitioner/s
Versus
1. The Union of India through Additional Principal Chief Conservator of Forest
(Central), Eastern Regional Office, A/3, Chandrashekharpur, Ministry of
Environment and Forest, Government of India.
2. Additional Principal Chief Conservator of Forest (Central), Eastern Regional
Office, A/3, Chandrashekharpur, Ministry of Environment and Forest,
Government of India.
3. The State of Bihar through the Principal Secretary, Department of
Environment and Forest Department
4. The Chief Conservator of Forest-Cum-Nodal Officer Forest Conservation,
Government of Bihar, Patna.
5. The Additional Principal Chief Conservator of Forest CAMPA-Cum-Nodal
Officer Forest Conservation
6. The Divisional Forest Officer, Begusarai Forest Division, Begusarai.
7. The Divisional Forest Officer, Samastipur Forest Division, Samastipur.
8. The District Magistrate, Samastipur.
9. Indian Oil Corporation Limited, Represented through Managing Director,
having its registered office
10. The Senir Divisional Retail Sales Manager, Indian Oil Corporation Limited,
Begusarai Divisional Off
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Avinash Kumar, Advocate
For the Respondent/s : Mr. Nilotpal Sharma, AC to GP-21
For the Union of India : Mrs. Kanak Verma, CGC
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CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Date : 08-09-2023
Heard Mr. Avinash Kumar, learned counsel for the
State and Mr. Nilotpal Sharma, learned AC to GP-21 for the
State and Mrs. Kanak Verma, learned CGC for the Union of
Patna High Court CWJC No.2186 of 2018 dt.08-09-2023
2/24
India.
2. The petitioner having been selected for retail
outlet dealership of petrol pump under Indian Oil Corporation
Limited has invoked the extraordinary jurisdiction of this Court
under Article 226 of the Constitution of India for the following
reliefs:
"(a). For issuance of appropriate Writ/
Writs, direction/ directions in the nature of
Certiorari for quashing the letter of Divisional
Forest Officer, Samastipur Forest Division,
Samastipur being letter no- 1208 dated 14.12.2017
issued in pursuance of Letter no.-FC-1104 dated
30.10.2017under the signature of Additional Principal Chief Conservator of Forest (CAMPA)- cum-Nodal Officer (Forest Conservation), Government of Bihar, Patna by which a demand of Rs.12,04,990.40 for plantation of 200 trees and its maintenance for ten years has been made in lieu of the penalty for operating the petrol pump without obtaining final approval from the Forest department ignoring the fact that the cost of Rs 14.680/- against NPV and Rs. 1,79,280/- was already paid in compliance of the demand made under Rules/Guidelines with regard to afforestation of 50 Trees along with its maintenance for ten years for obtaining No Objection Certificate and as such the impugned demand being illegal and contrary to the Rules is required to be set aside.
(b). For issuance of appropriate Writ/ Writs, Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 3/24 direction/ directions in the nature of mandamus or Writs, order or orders directing the respondent authorities not to take any coercive steps against the petitioner and allow the retail out-let of petrol pump in question to operate smoothly during the pendency of the writ application.
(c). Further directing the respondents to keep the impugned letter by which the demand has been made under abeyance till the final disposal of the writ application or may grant any other relief/reliefs which the Hon'ble court may grant in the interest of the public that may be deemed appropriate and necessary in this case."
3. The factual matrix of the present case is that the petitioner being the aspirant of becoming entreprenuer applied for licence for opening retail outlet dealership of petrol pump within the district of Samastipur pursuant to the advertisement dated 25.10.2010 issued by the Indian Oil Corporation Limited (hereinafter referred to as 'the IOCL') for location at Rosera under open category (W).
4. After having completed all the paraphernalia and the verification of documents as well as site, the petitioner was selected for awarding the aforementioned retail outlet dealership of petrol pump and the Letter of Intent for proposed 'B' site dealership of petrol pump at Rosera was issued in favour of the petitioner on 09.02.2012. After completion of the selection Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 4/24 process, the Senior Divisional Retail Sales Manager, Begusarai Divisional Office, IOCL filed an application along with required copies of Drawing of index map with a site plan before the District Magistrate, Samastipur for issuance of 'No Objection Certificate' as required under Rule-144 of the Indian Petroleum Rules, 2002. Pursuant to the direction issued by the District Magistrate and after verification of the documents as well as the site, all the concerned departments except the Forest Department submitted their 'No objection'. The copies of which have been marked as Anenxures-3, 4 and 5 to this petition. Further the Circle Officer, Rosera also issued Land Utilization Certificate vide its letter dated 03.04.2012 stating therein that there is no forest over the land, in question. When no action was taken at the level of the Forest Department, the petitioner filed an application along with the project report and other documents, whereupon the Forest Officer, Rosera inspected the site and submitted his report vide letter no.-143 dated 04.07.2012. It is the case of the petitioner that the aforenoted report, Sub-clause-3 thereof clearly manifest that there was no tree over the said forest land, which was said to be diverted for use as approach road. Further it transpire that some wrong calculation of the area of land to be used as approach road was Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 5/24 made and as such objection was raised. Accordingly, a corrigendum letter dated 03.06.13 was issued by the Chief Conservator of Forest cum-Nodal Officer, Bihar, Patna. In the meanwhile, the respondent no.10 vide letter dated 09.05.2013 wrote to the District Magistrate, Samastipur requesting him to issue the NOC to run the retail outlet of petrol pump as the grant of NOC from the Forest Department was under process.
5. Considering the request of the IOCL, the District Magistrate issued No Objection Certificate, as contained in Memo No.-1524 dated 19.06.2013 granting conditional permission to open the petrol pump with stipulation that once the NOC from the Forest department is issued, the same would be submitted before the District Magistrate. Subsequently, the Conservator of Forest (Central), Eastern Regional Office, Ministry of Environment and Forest, Government of India vide its letter dated 11.07.2013 accorded the consent and agreed for diversion of forest land for construction of approach road for opening of retail outlet of IOCL. In compliance thereof, the respondent no.4 issued letter by which a demand of Net Present Value (NPV) of the forest land to be diverted for approach road as well as against the compensatory afforestation was made.
6. The amount of NPV was calculated to the tune of Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 6/24 Rs 14,680/-, however ignoring the corrigendum issued by its department, the incorrect calculation was made for total area of 0.02345 hectare in place of 0.0075 hectare and further demand of an amount to the tune of Rs.1,79,280/- against the plantation of 50 trees and its maintenance for ten years, as Compensatory Afforestation was made. The petitioner immediately deposited the amount, as demanded in terms of letter dated 12.08.2013 (Annexure-12 to the writ petition) thereafter the Ministry of Commerce and Industry, Petroleum and Explosives Safety Organisation (PESO), Government of India granted License in Form XIV under the Petroleum Rules, 2002 for storage of the kind and quantities of petroleum mentioned therein. Having been completed all the formalities, the IOCL started supplying the petrol and diesel to the retail outlet of the petitioner, who started operation of his petrol pump on 28.09.2013.
7. In continuation of above, the Divisional Forest Officer, Samastipur Forest Division vide its letter no-319 dated 28.02.2015 forwarded the requisite documents along with the standard format of the FRA-2006 Certificate and recommended for issuance of FRA- 2006 Certificate at the level of the District Magistrate, who in turn issued FRA-2006 Certificate, bearing no.-1095 dated 20.05.2015 which was immediately submitted Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 7/24 by the petitioner before the Chief Forest Conservator-cum- Nodal Officer, Bihar, Patna for his necessary action.
8. After sitting tight over the matter for a pretty long period to utter surprise of the petitioner, a letter dated 10.07.2017 was received by him that he has not complied with the directions issued by the Forest Department, which was immediately responded by the petitioner through letter dated 18.07.2017 as well as through registered post dated 20.07.2017.
9. The petitioner thereafter received another letter being FC-698 dated 26.07.2017 asking the petitioner to comply with the earlier direction. In response thereto the petitioner immediately submitted the compliance report strictly in the tune of the requirement as shown by the authorities concern. After having considered the compliance report submitted by the petitioner, the Additional Principal Chief Conservator of Forest- cum-Nodal Officer, Bihar vide its memo no.-FC-778 dated 09.08.2017 recommended with a request to the Government of India for granting final approval for diversion of forest land. Despite all the aforenoted facts, the Begusarai Divisional Office of IOCL issued another letter dated 08.08.2017 to the petitioner stating that the Petrol Pump is being run in violation of Forest (Preservation) Act,1980. The petitioner duly replied the said Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 8/24 letter and explained the entire matter, inter alia, that after deposition of the amount against the NPV and Compensatory Afforestation in compliance of the letter no.-1698 dated 12.08.2013 and after having seen the compliance report dated 21.08.2013 and only after the direction issued vide letter dated 11.07.2013, the retail outlet of Petrol pump came into operation.
10. The petitioner in his reply, further made it clear that no further communication was made on behalf of Forest Department and in the mean time, taking note of the request made by the officers of the IOCL, the District Magistrate, being the competent authority issued the NOC for operating petrol pump and moreover the petitioner has also obtained license from the Ministry of Commerce and Industry and the supply of the petroleum product to the petitioner's pump was also made by the IOCL. Despite having been explained the entire facts before the authorities of the Forest Department, the District Forest Officer, Samastipur Forest Division vide his letter no. 1208 dated 14.12.2017 imposing the cost of Compensatory afforestation of plantation of 200 trees and its maintenance for 10 years to the tune of Rs.12,04,990.40 was issued.
11. While assailing the impugned order dated 14.12.2017, the petitioner submitted that admittedly the Letter Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 9/24 of Intent was issued on 09.02.12 and pursuant to the request made by the IOCL to the District Magistrate, Samastipur, for issuance of NOC in terms of Rule 144 of the Petroleum Rules, 2002, the office of the District Magistrate wrote a letter to the Divisional Forest Officer, Begusarai vide letter no. 793 dated 15.02.2012. Even after fulfilling all the conditions and deposition of the amounts against the NPV and Compensatory afforestation in terms of the demand made by the Divisional Forest Officer Begusarai vide letter no.-1608 dated. 12.08.2013, till date, the clearance of Stage II/Final approval have not been granted by the respondent authorities for the reasons best known to them and now for their own laches and delay, the imposition of penalty upon the petitioner is wholly arbitrary and malafide.
12. The petitioner further drew the attention of this Court to the Forest (Conservation) Rules, 2007, especially Rules, 6, 7 and 8 and in reference thereto he submits that it is statutory obligation on the part of the respondent authorities to perform their legal duty within the stipulated reasonable time in the manner prescribed therein and thus for any lapses on their part, the petitioner cannot be penalized.
13. Learned counsel for the petitioner vehemently submitted that the petitioner never violated any of the direction Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 10/24 issued from the competent authority and has been sincerely abiding all the directions issued time to time. That apart, the petitioner even deposited the excess amount against the NPV and also deposited the amount against the Compensatory Afforestation in terms of demand made way back in the year 2013 and only thereafter vide letter dated 11.07.2013 the Central Government agreed for diversion of the forest land to be used as approach road.
14. He also submits that the impugned order imposing penalty has put reliance over the letter no. FC1104 dated 30.10.2017 issued by the Additional Principal Chief Conservator of Forest-cum-Nodal Officer, Bihar, Patna but the copy of the same has not been supplied to the petitioner and, as such, the same is also required to be set aside by this Court.
15. Reliance has also been made on the judgments rendered by the Apex Court in the case of M/s. Hindustan Steel Ltd. Vs. The State of Orissa, AIR 1970 SC 253 as well as S. L. Kapoor vs. Jagmohan and Ors, AIR 1981 SC 136.
16. He lastly submits that pursuant to the interim order dated 08.03.2018 granting status quo as existing today with regard to operation of petroleum dealership, the petitioner has been operating his retail outlet dealership of petrol pump. Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 11/24
17. Per contra, learned counsel representing the respondent Union of India by filing a counter affidavit refuted the contention of the petitioner and submits that admittedly the petitioner had applied for diversion of 0.02345 hectares of forest land for approach of retail outlet dealership of petrol pump to be constructed in Samastipur district at Samastipur-Sagi road in the year 2012 and vide Annexure-10 of this writ petition, the Ministry of Forest, Environment and Climate Change, Regional Office, Bhubneshwar, the petitioner was accorded Stage-I approval in the year 2013 subject to fulfillment of certain conditions. By the said letter it has been mentioned that after receipt of the compliance report on fulfillment of the conditions, as stipulated in the letter, from the State Government, formal approval will be issued in this regard under Section 2 of the Forest (Conservation) Act, 1980.
18. It is further submitted that the user agency was under obligation to obtain the clearance under the provision of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (hereinafter referred to as 'the Forest Right Act, 2006') before final clearance of the project report but the petitioner failed to obtain the certificate from District Magistrate in connection with Forest Right Act, Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 12/24 2006 and in this way he kept the matter pending for a long time, but on the other hand started operating the retail outlet in the year 2014, without obtaining the Stage-II clearance under Forest (Conservation) Act, 1980. It is next submitted that the petitioner finally submitted the certificate regarding Forest Right Act, 2006 in the year 2015 but did not submit any letter with regard to compliance of other conditions, despite that the proposal was then forwarded to Ministry of Environment, Forest and Climate Change, Regional Office, Ranchi through State Government for obtaining Stage-II clearance under Forest (Conservation) Act, 1980. However, having taken note of all the facts, the Ministry of Environment, Forest and Climate Change, Regional Office, Ranchi vide letter dated 09.10.2017 requested for compliance of following conditions for further processing of the proposal, inter alia, subject to the condition of the cost of plantation of 200 trees and its maintenance for 10 years towards the penal compensatory forestation and the submission of original FRA certificate.
19. The Divisional Forest Officer, Samastipur in compliance of aforesaid letters raised the demand for plantation of 200 trees under Iron Gabion Plantation and its maintenance for 10 years from the petitioner based on schedule rate Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 13/24 prescribed by the Principal Chief Conservator of Forest (Development), Bihar. It is lastly submitted that the petitioner had installed the retail outlet dealership without complying with all the conditions laid down in letter, as contained in Annexure- 10 to this writ application, hence the Government of India has imposed penal compensatory forestation demand of plantation of 200 trees and its maintenance for 10 years and due to none compliance of the said demand, it is not possible to grant formal approval under Section 2 of the Forest (Conservation) Act, 1980.
20. This Court has heard the parties at length and perused the materials available on record. Prima facie, from the records, it appears that before issuance of Stage-I approval the Forest Officer, Rosera inspected the site and submitted his report vide letter no.143 dated 04.07.2012 which stipulated the fact that there is no tree over the said forest land, which was said to be diverted for use as approach road and thereafter on the basis of the calculation of the area of land a demand of net present value of the Forest Land to be diverted for approach road as well as compensatory forestation was made which was duly calculated by the Divisional Forest Officer, Begusarai Forest Division vide his letter dated 12.08.2013 and in terms of Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 14/24 the said letter Rs.14,680/- against NPV and Rs.1,79,820/- against plantation of 50 trees and its maintenance for ten years as compensatory afforestation was paid by the petitioner. In the meantime, on the request made by Senior Divisional Sales Manager IOCL, Begusarai, the No Objection Certificate to run the proposed outlet dealership of petrol pump was issued at the level of the District Magistrate considering the fact that grant of NOC from the Forest Department is under process and the same would be submitted as soon as it is issued. It is made clear that the District Magistrate, Samastipur, being the competent authority under Rule 144 of the Petroleum Rules, 2002, issued 'No Objection Certificate' contained in Memo No. 1524 dated 19.06.2013 granting conditional permission to open and run the petrol pump. The condition was that the petitioner would submit NOC of the Forest Department once it is issued. It is the admitted fact that after the approval of Stage-I clearance, no communication has been made at the level of the Forest Department and after four years the impugned order raising the demand for plantation of 200 trees under Iron Gabion Plantation and its maintenance for 10 years towards the penal compensaory forestation and for submission of original FRA certificate have been issued, though the petitioner had already submitted the Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 15/24 certificate under the provision of ST and OTED (Recognition of Forest Rights) Act, 2006 in the year 2015 itself.
21. This Court also finds that the petitioner has rightly drawn the attention of this Court to the provisions of Forest (Conservation) Rules, 2003, especially Rules 6, 7 and 8, which specifically deal with the time bound procedures for submissions of a proposal seeking approval of the Central Government under Section 2 of the Act, the processing of the proposals received by the Central Government and; the submission of report on compliance to conditions stipulated in the in-principle approval and grant of final approval.
22. Learned counsel for the petitioner has also taken this Court through the relevant Sub-rules of the aforenoted Rules, especially Rule 6(3)(e)(f) of Forest (Conservation) Rules, 2003, which reads as follows:
"[6.(3)(e) The District Collector shall-
(i) complete the process of recognition and vesting of forest rights in accordance with the provisions of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 (2 of 2007) for the entire forest land indicated in the proposal;
Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 16/24
(ii) obtain consent of each Gram Sabha having jurisdiction over the whole or a part of the forest land indicated in the proposal for the diversion of such forest land and compensatory and ameliorative measures, if any, having understood the purposes and details of diversion, wherever required; and
(iii) forward his findings in this regard to the Conservator of Forests.
(f) The entire process referred to in clause (e) shall be completed by the District Collector within the time period stipulated in these rules for grant of in-
principle approval under the Act to the proposal."
23. He further highlighted the provisions of Rule 8(1)(g) and (k) of Forest (Conservation) Rules, 2003, which are being reproduced herein below:
"8(1)(g) In case the Conservator of Forests finds that the compliance report is complete in all respect, he shall forward such report along with the report on completion of the process of recognition and vesting of forest rights and consent of the each Gram Sabha received from the District Collector referred to in sub- clause (f) of sub-rule (3) of rule 6, to the Nodal Officer within a period of fifteen days of its receipt from the Divisional Forest Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 17/24 Officer:
Provided that in case the Conservator of Forests finds that the compliance report is incomplete, he shall communicate the shortcoming or shortcomings in the compliance report to the User Agency and the Divisional Forest Officer within a period of fifteen days of its receipt from the Divisional Forest Officer.]
(k) If the State Government or Union territory Administration, as the case may be, finds that the compliance report is incomplete, it shall communicate the shortcoming or shortcomings in the compliance report to the User Agency, the Nodal Officer, the Conservator of Forests and the Divisional Forest Officer within a period of fifteen days of its receipt from the Nodal Officer and if the compliance report is complete in all respects, it shall be forwarded to the [Ministry of Environment, Forests and Climate Change] or the Regional Office, as the case may be, within a period of fifteen days of its receipt from the Nodal Officer."
24. Having gone through the relevant provisions, as noted hereinabove, prima facie, this Court finds substance that a time limit has been duly prescribed for all the purposes of processing of proposal received by the Central Government; and Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 18/24 on submission of report, and after having found compliance to conditions stipulated in the principle, grant of final approval, and in case the State Government or the concerned authority finds the compliance report is in complete, it was incumbent upon the authorities to communicate the shortcoming or shortcomings in the compliance report to all the stake holders and if the compliance report is complete, it shall be forwarded to the [Ministry of Environment, Forests and Climate Change] or the Regional Office, within a period of fifteen days of its receipt from the Nodal Officer, but the same has not been done in the present case.
25. It is needless to observe that when a statute describes or requires a thing to be done in a particular manner by a particular authority within the period prescribed, it should be done in that manner or not at all. Other modes are necessarily forbidden. This principle was enunciated by the Privy Council in the case of Nazir Ahmad v. King- Emperor, 1936 SCC OnLine PC 41, wherein it was held that "that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden."
15. A three Judge Bench of this Court in Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 19/24 a judgment reported as Chandra Kishore Jha v. Mahavir Prasad & Ors., (1999) 8 SCC 266, held as under:
"17....................It is a well- settled salutary principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner (See with advantage:
Nazir Ahmad v. King Emperor [(1935- 36) 63 IA 372: AIR 1936 PC 253 (ii)], Rao Shiv Bahadur Singh v. State of V.P. [AIR 1954 SC 322 : 1954 SCR 1098], State of U.P. v.
Singhara Singh (AIR 1964 SC 358: (1964) 1 SCWR 57]. ) An election petition under the rules could only have been presented in the open court up to 16-5-1995 till 4.15 p.m. (working hours of the Court) in the manner prescribed by Rule 6 (supra) either to the Judge or the Bench as the case may be to save the period of limitation. That, however, was not done............
26. This Court also finds substance in the submissions of the petitioner that once the petitioner has submitted required certificate in terms of the conditions stipulated while granting Stage-I approval, as contained in Annexure-10, it was incumbent upon the respondent authority to respond to his application showing compliance of the conditions or the shortcoming, if any. The petitioner has also rightly relied Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 20/24 upon the judgment rendered by the Apex Court in the case of M/s Hindustan Steel Ltd. Vs. The State of Orissa (supra). It would be proper to quote para. 7 thereof:
"7. Under the Act penalty may be imposed for failure to register as a dealer:
Section 9 (1) read with Section 25(1)(a) of the Act. But the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. An Order imposing penalty for failure to carry out a statutory obligation is the result of a quasi-criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty will be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows from a bona fide belief that the offender is not liable to act in the manner prescribed by the statute. ........"
Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 21/24
27. This Court is also of the view that any order causing prejudice to the entitlement of a person and giving rise to civil as well as evil consequences, must be in conformity with the principle of natural justice, which is not an empty formality and absolutely basic to our system that justice must manifestly be seen to be done. This Court feels it apposite to quote some relevant part of paragraph nos. 16 and 24 of the judgment of the Apex Court in the case of S. L. Kapoor (supra).
"16. ............. In our view, the requirements of natural justice are met only if opportunity to represent is given in view of proposed action. The demands of natural justice are not met even if the very person proceeded against has furnished the information on which the action is based, if it is furnished in a casual way or for some other purpose. We do not suggest that the opportunity need be a 'double opportunity' that is, one opportunity on the factual allegations and another on the proposed penalty. Both may be rolled into one. But the person proceeded against must know that he is being required to meet the allegations which might lead to a certain action being taken against him. If that is made known the requirements are met.
Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 22/24
24. .............In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non- observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal."
28. It is also well settled that no person can be penalized for the fault and laches of the authorities concerned, who are statutorily duty bound to regulate their conduct and business.
29. This Court is tempted to quote a paragraph of Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 23/24 celebrated judgment in the case of All India Groundnut Syndicate Limited Vs. Commissioner of Income Tax, Bomnay City, reported in AIR 1954 Bombay 232. The relevant part of the judgment is quoted hereinabove:
"But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under Sub- section (2) of Section 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person-- we take it that the Income-tax Department is included in that definition--can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because "I have committed a default and the right is lost because of that default."
30. Thus, in view of the facts, circumstances and the position obtaining in law, as discussed hereinabove, this Court has no hesitation to hold that penalty imposed for operating the petrol pump without obtaining the final approval from the Forest Department is not sustainable in law as well as on facts, hence the impugned order, as contained in letter No. 1208, dated 14.12.2017, issued in pursuance of letter No. FC-
Patna High Court CWJC No.2186 of 2018 dt.08-09-2023 24/24 1104 dated 30.10.2017 is hereby set aside.
31. Accordingly, the writ petition stands allowed with a direction to the respondent authority to consider the case of the petitioner afresh for final approval and pass necessary order, as required under Section 2 of the Forest (Conservation) Act, 1980 preferably within a period of three months from the date of receipt/production of a copy of this order.
(Harish Kumar, J) uday/-
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