Allahabad High Court
M/S Ajay Kumar vs State Of U P And 3 Others on 11 September, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- WRIT - C No. - 27391 of 2019 Petitioner :- M/S Ajay Kumar Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Devbrat Mukherjee Counsel for Respondent :- C.S.C. Hon'ble Sudhir Agarwal,J.
Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Devbrat Mukherjee, learned counsel for petitioner and learned Standing Counsel for State of U.P. and its Authorities.
2. This Writ Petition under Article 226 of Constitution of India has been filed by sole petitioner, M/s Ajay Kumar, a Proprietary Firm of which Ajay Kumar Sharma is the proprietor. Relief sought in the present petition is to issue a writ of certiorari quashing order dated 27.07.2019, (Annexure No. 1 to Writ Petition) which is an order passed by Regional Forest Officer, Dala Range, Obra Forest Range Division, Sonbhadra (hereinafter referred as "RFO") on a representation of petitioner dated 30.04.2019 which was submitted pursuant to order of this Court dated 24.04.2019 passed in Writ Petition No. 24530 of 2018. The Representation has been rejected by RFO.
3. Facts, in brief, as borne out from averments made by petitioner in petition as also the documents appended thereto are that there is a 'Crusher' plant established in Arazi No. 4478, Village, Billi, Markundi, Tehsil Robertsganj, District Sonbhadra.
4. In respect of Arazi No. 4478 (M), Area 2-0-0, one Ravindra Kumar Singh filed an application before Forest Settlement Officer (hereinafter referred as "F.S.O.) registered as Case No. 243 of 1993. F.S.O. vide order dated 19.08.1993 recommended for exclusion of 2-0-0 area of plot no. 4478 (M) from the proposal of 'Reserve Forest'.
5. Appeals against said order were taken Suo Moto by Additional District Judge, Obra, Sonbhadra, pursuant to Supreme Court's judgement in Banwasi Seva Ashram Vs. State of U.P. and others (1986) 4 SCC 753. In para 10 (2) and (3), Supreme Court had given directions as under:-
"(2) In regard to the lands notified under Section 4 of the Act, even where no claim has been filed within the time specified in' the notification as required under Section 6(c) of the Act, such claims shall be allowed to be filed and dealt with in the manner detailed below:
I. Within six weeks from December 1, 1986, demarcating pillars shall be raised by the Forest Officers of the State Government identifying the lands covered by the notification under Section 4 of the Act. The fact that a notification has been made under Section 4 of the Act and demarcating pillars have been raised in the locality to clearly identify the property subjected to the notification shall be widely publicized by beat of drums in all the villages and surrounding areas concerned. Copies of notices printed in Hindi in abundant number will be circulated through the Gram Sabhas giving reasonable specifications of the lands which are covered by the notification. Sufficient number of inquiry booths would be set up within the notified area so as to enable the people of the area likely to be affected by the notification to get the information as to whether their lands are affected by the notification, so as to enable them to decide whether any claim need be filed. The Gram Sabhas shall give wide publicity to the matter at their level, Demarcation, as indicated above, shall be completed by January 15, 1987. Within three months therefrom, claims as contemplated under Section 6(c) shall be received as provided by the statute.
II. Adequate number of record officers shall be appointed by December 31, 1986. There shall also be five experienced Additional District Judges, one each to be located at Dudhi, Muirpur, Kirbil of Dudhi Tehsil and Robertsganj and Tilbudwa of Robertsganj Tehsil. Each of these Additional District Judges who will be spared by the High Court of Allahabad, would have his establishment at one of the places indicated and the State shall provide the requisite number of assistants and other employees for their efficient functioning. The learned Chief Justice of the Allahabad High Court is requested to make the services of five experienced Additional District Judges available for the purpose by December 15, 1986 so that these officers may be posted at their respective stations by the first of January, 1987. Each of those Additional District Judges would be entitled to thirty per cent of the salary as allowance during the period of their work. Each Additional District Judge would work at such of the five notified places that would be fixed up by the District Judge' of Mirzapur before December 20, 1986. These Additional District Judges would exercise the powers of the Appellate Authority as provided under Section 17 of the Act.
III. After the Forest Settlement Officer has done the needful under the provisions of the Act, the findings with the requisite papers shall be placed before the Additional District Judge of the area even though no appeal is filed and the same shall be scrutinized as if an appeal has been taken against the order of the authority and the order of the Additional District Judge passed therein shall be taken to be the order contemplated under the Act.
3. When the Appellate Authority finds that the claim is admissible, the State Government shall (and it is agreed before us) honour the said decision and proceed to implement the same. Status quo in regard to possession in respect of lands covered by the notification under Section 4 shall continue as at present until the determination by the appellate authority and no notification under Section 20 of the Act shall be made in regard to these lands until such appellate decision has been made."
(Emphasis added)
6. Appeal was registered as Appeal No. 1324 of 1993 and decided vide order dated 30.09.1994. Case No. 243 of 1993 of Ravindra Kumar Singh was considered in para 36 of Appeal No. 1324/1993 and it reads as under:-
^^36- vihykUrxZr okn la[;k 243 @ 93 esa vUrjfufgr Hkw[k.M la[;k 4478 d fe @ 20&0&0 ij johUnz dqekj flag }kjk vkifRr dh x;h vkSj dgk x;k fd bl ij mldk yscj gVesV vkfQl] edku vkfn fLFkr gSA jkT; ljdkj dh vuqefr ls dk;Z dj jgk gS ftls /kkjk 4 dh foKfIr ls i`Fkd fd;k tk;A ou foHkkx dh rjQ ls vkifRr dh x;h fd jkT; ljdkj dh lEifRr gS nwljk dksbZ bldk ekfyd ugha gks ldrkA jkT; ljdkj dh vuqefr ls fd;s x;s dk;Z ij vf/kdkj ugha fn;k tk ldrkA ou laj{k.k vf/kfu;e ykxw gSA vkifRr [kkfjt gksus ;ksX; gS i{kksa dks lk{; dk volj fn;k x;kA vkosnd us 1987 ls [kuu dk;Z djus dk izek.k i= fn;k vkSj [kfut vuqKk i= fnukad 12-03-1992 dk izLrqr fd;k gSA ou cUnkscLr vf/kdkjh us Hkwfe dk fujh{k.k fd;k vkSj ekSf[kd lk{; dk ifj'khyu fd;k blds ifj.kke Lo:i 2&0&0&0 Hkwfe dks iwoZor jkT; ljdkj esa cus jgus ds vkns'k ds lkFk bl okn dk fuLrkj.k fd;kA** "36. Objection has been raised by Shri Ravindra Kumar on land no. 4478 Ka Mi./20-0-0 mentioned in the suit no. 243 of 1993 under appeal, stating that his labour hutment office, house etc. are situated thereon and that he is working with the permission of the State Government and that the same may please be excluded from the notification issued u/s 4. Objection has been raised on behalf of the forest department saying that nobody else cannot be the owner of the same as it belongs to the State Government. A right cannot be vested just on the basis of the work undertaken by permission of the State Government. Forest (Conservation) Act is applicable. The objection is liable to be rejected. The parties were afforded the opportunity to adduce evidences. The applicant has produced a certificate for doing mining work since 1987 as also a licence for mining dated 12.03.1992. The Forest Settlement Officer inspected the land and perused the oral evidence; and thereafter, disposed of this case with the order that 2-0-0-0 land be retained with the State Government as was earlier."
(Emphasis added) (English translation by Court)
7. Findings are recorded by appellate authority in paragraph 56 to 61. It confirmed order of F.S.O. Thereafter Review Applications were filed by Forest Department. Review Application relating to Ravindra Kumar Singh in Appeal No. 1324 of 1993 was numbered as 234 of 1997, Forest Department Vs. Ravindra Kumar Singh and Others. This Review Application along with others was accepted and allowed vide judgement dated 31.05.2003. Operative part of order reads as under:-
^^ou foHkkx }kjk izLrqr dh x;h lHkh mijksDr iquksZfopkj ;kfpdk;sa Lohdkj dh tkrh gSaA i{kdkj ds }kjk izLrqr iqukZfopkj ;kfpdk la[;k&37@2002 ,oa 198@ 2002 [kfjt dh tkrh gSA lHkh iqukZfopkj ;kfpdkvksa ds le{k lHkh vihyksa esa ikfjr fu.kZ; vkLr fd;s tkrs gSaA mijksDr lHkh ou foHkkx }kjk izLrqr iquksZfopkj ;kfpdk;sa ,oa i{kdkj }kjk izLrqr iquksZfopkj ;kfpdk la[;k&37@2002 ,oa 198@2002 esa vafdr Hkw[k.M dks /kkjk 4 Hkkjrh; ou vf/kfu;e ds vUrxZr lqjf{kr ou cuk;s tkus ds izLrko esa lfEefyr fd;s tkus dk vkns'k fn;k tkrk gSA bl fu.kZ; dh ewy izfr fjO;w ;kfpdk la[;k 158@97 ou foHkkx cuke lq[kUnj mik/;k; esa j[kh tk; 'ks"k ;kfpdkvksa esa bldh izfr j[kh tk;A** "All the aforesaid review petitions presented by the forest department are allowed. Review Petition Nos. 37/2002 and 198/2002 presented by the party are dismissed. Judgements passed in all appeals under challenge in all the review petitions are set aside. The piece of land mentioned in all the review petitions presented by the forest department and also in the review petition nos. 37/2002 and 198/2002 presented by the party, is ordered to be included in the proposal for constituting it a reserved forest under section 4 of the Indian Forest Act. The original copy of this judgement be kept with the Review Petition No. 158/97 Forest Department Vs Sukhander Upadhyay and its copies be kept with the remaining petitions." (Emphasis Added) (English translation by Court)
8. Ravindra Kumar Singh, being aggrieved by judgment and order dated 31.05.2003, whereby review application was allowed by Additional District Judge, Obra, filed Writ Petition No. 41578 of 2007. One Ved Prakash Garg and Others (Appeal No. 45 of 94 and Review Application No. 227 of 1997) also challenged order dated 31.05.2003 in Writ Petition No. 29546 of 2003 (Ved Prakash Garg and others Vs. Additional District and Sessions Judge and Others). Writ Petition filed by Ved Prakash Garg and others i.e. Writ Petition No. 29546 of 2003 was allowed vide judgement dated 14.2.2006 and operative part of judgement reads as under:-
"In view of the facts that the State government has itself taken a decision that the land in question should be treated as land belonging to the Revenue Department of the State Government on which mining operations should be permitted as was being done earlier. It is directed that the applications for renewal of the mining leases of the petitioners shall be considered and decided by the respondent no. 3 in accordance with law production of a certified copy of this order before the said respondent.
With the aforesaid directions, this writ petition stands allowed and the order dated 31.05.2003 is quashed. There shall be no order as to costs."
(Emphasis added)
9. It may be noticed at this stage that before learned single judge, Sri S.M.A. Quazmi, Additional Advocate General appearing on behalf of State made a statement that Additional District Judge had no power of review of its own order. Similarly, Sri Shashi Nandan, learned Senior Advocate appearing on behalf of petitioners stated that during pendency of Writ Petition, mining lease of the petitioners have expired and their applications for renewal were pending before Additional District Magistrate and he may be directed to decide the same at the earliest. The judgement dated 14.02.2006, therefore, was passed by learned Single Judge in the backdrop of the above statements of Additional Advocate General appearing for the State and learned Senior Counsel appearing for petitioners, Ved Prakash Garg and Others.
10. Ravindra Kumar Singh in his Writ Petition No. 41578 of 2007 claimed extension of benefit of the judgement dated 14.02.2006 passed in Writ Petition No. 29546 of 2003. However his Writ Petition came to be decided by a learned Single Judge (Hon'ble Ashok Bhushan, J. as His Lordship then was) and vide judgement and order dated 4.10.2007, Writ Petition was dismissed. The judgment is reported as Ravindra Kumar Singh and Others Vs. Additional District and Sessions Judge, Anpara and Others, 2007 (9) ADJ 251. We propose to discuss this judgment in detail at a later stage.
11. State Government following judgment dated 14.02.2006 passed in Writ Petition No. 29546 of 2003, issued a Government Order dated 18.09.2008 informing Principal Conservator of Forest that land under the aforesaid judgement belongs to Revenue Department of Government and would not come within the category of "Forest Land".
12. Petitioner claimed that Crusher plant was established at Gata No. 4478, area 2 bighas. It was purchased by petitioner from Ravindra Kumar Singh, about 10 years back and since then, he is operating the said Crusher Plant.
13. RFO issued notice dated 16.05.2018 informing that Arazi no. 4478 is a "Forest Land" and no commercial or non forest activities can be carried out thereon, therefore, petitioner must remove his Crusher plant and vacate the said land. The plant of petitioner was also seized on the same day in purported exercise of power under Sections 5/26/52 of Indian Forest Act, 1927 (hereinafter referred to be as "Act, 1927").
14. Notice dated 16.5.2018 as also seizure, was challenged by petitioner in Writ Petition No. 24530 of 2018 which was allowed vide judgement and order dated 24.04.2019 on the ground that no show cause notice or opportunity was given, therefore, RFO was directed to pass fresh order after giving opportunity of hearing to petitioner. The judgement dated 24.04.2019 reads as under:-
"Heard Shri Devbrat Mukherjee, learned counsel for the petitioner and the learned standing counsel for the respondents.
The petitioner in the writ petition is seeking quashing of the notice dated 16.5.2018 whereby the petitioner's Crusher plant has been sealed under section 52 of the Indian Forest Act, 1927.
It is pointed out that in the identical matter a writ petition no. 23756 of 2018 (M/s Ballia Sita Stone Products and another Vs. State of U.P. and others) was filed challenging the same Notification dated 16.5.2018 and the said writ petition was allowed by this court vide judgment and order dated 19.7.2018 and the impugned notices dated 16.5.2018 and 25.5.2018 were quashed and the respondent was directed to pass a fresh order in the matter after affording opportunity of hearing to the petitioners.
Learned counsel for the parties do not dispute that the controversy in the present writ petition is identical to that of writ petition no. 23756 of 2018 and in this writ petition also no opportunity of hearing was given to the petitioner before sealing his Crusher plant.
In this view of the matter, we quash the impugned notice dated 16.5.2018 and direct the respondent no. 3-Forest Range Officer, Dala Range, Dala District Sonbhadra to re-examine the matter and pass appropriate orders in accordance with law within three months from the date of receipt of the certified copy of this order.
The writ petition stands allowed."
(Emphasis added)
15. Petitioner communicated aforesaid judgement to RFO vide letter dated 29.04.2019. Thereafter impugned order has been passed by RFO holding that in respect of Arazi No. 4478 matter has already been decided by this Court in Ravindra Kumar Singh and Others Vs. Additional District Judge and others (Supra) and that judgement has become final, hence, land in question on which 'Crusher plant' is being run, has to be dealt with according to the aforesaid judgement.
16. Sri Devbrat Mukherjee, learned counsel for petitioner, contended that Arazi No. 4478 was notified only under Section 4 of Act, 1927 and no notification under Section 20 of Act, 1927 has been issued till date, therefore, land in question cannot be treated to be a 'Forest land'. Respondent no. 3 while passing impunged order and treating the land in dispute as 'Forest' land has committed manifest error. He placed reliance on the judgement of this Court in Ved Prakash Garg and Others Vs. Additional District Judge and Others (Supra) and said that judgement in Ravindra Kumar Singh and Others Vs. Additional District Judge and others (Supra) is per incuriam and cannot hold the field on the question, whether land in dispute is a 'Forest Land' or not. He also pointed out that against the judgement in Ved Prakash Garg (Supra), State Government preferred Special Appeal Defective No. 63 of 2018, and same was dismissed on the ground of laches, vide order dated 2.02.2018 since appeal was filed after 11 years and 320 days. State Government then filed Special Leave Petition (Civil) Diary No. 33675 of 2018 and Supreme Court, after condoning delay, dismissed Special Leave Petition vide order dated 22.11.2018. Since judgment of learned Single Judge in Ved Prakash Garg and Others (Supra) has become final upto Supreme Court, therefore, it is binding upon respondents and it was not open to RFO to take a different view in the matter. He submitted that unless final notification under Section 20 is issued declaring disputed land as "Reserve Forest", merely on the basis of Section 4 notification, land in dispute cannot be treated to be "Reserve Forest Land", hence, functioning of Crusher Plant of petitioner can not be stopped. He also submitted that Forest (Conservation) Act, 1980 (hereinafter referred to as "Act, 1980") is not applicable to land in dispute; respondents cannot take advantage of their own wrong; RFO has not applied its mind; impugned order has been passed with malafide and illegally; no opportunity has been given to petitioner of being heard before passing impugned order and, therefore, he prayed that impugned order is liable to be set-aside.
17. The above facts we have discussed in detail for the reason that in the Writ Petition, facts have not been pleaded in a whole-some, chronological manner. There is a complete jumbling and confusion which has been sought to be created so as to seek shelter under the judgment of this Court in Ved Prakash Garg (Supra) and to avoid the judgment in Ravindra Kumar Singh and Others Vs. Additional District Judge and others (Supra) which was in respect of this very land which is subject matter of this Writ Petition on which petitioner is running 'Crusher Plant' having been purchased from Ravindra Kumar Singh. Since judgment in Ravindra Kumar Singh and Others Vs. Additional District Judge and others (Supra) is in respect of land in dispute, therefore, it is inter-se parties as petitioner stands in the shoes of Ravindra Kumar Singh and this judgment is binding upon him.
18. The first submission that the judgment in Ravindra Kumar Singh and Others Vs. Additional District and Sessions Judge (supra) is per incuriam has no substance inasmuch as the judgment has attained finality between the parties i.e. Ravindra Kumar Singh and State of U.P. and petitioner having purchased 'Crusher Plant' standing on the disputed land from Ravindra Kumar Singh, he has entered into the shoes of Ravindra Kumar Singh and, therefore the above judgment is binding upon petitioner also. Moreover the judgment in Ravindra Kumar Singh and Others Vs. Additional District and Sessions Judge (Supra) has already considered earlier Single Judge judgment in Ved Prakash Garg (Supra) and therefore, it cannot be said that it is per incuriam. We find that learned Single Judge in Ravindra Kumar Singh and Others Vs. Additional District and Sessions Judge (Supra) has relied on an earlier Division Bench Judgment in Smt. Pyari Devi Vs. State of U.P. and others AIR 2004 All. 70.
19. In Smt. Pyari Devi Vs. State of U.P. and others (Supra), the facts were that she was granted a mining lease of sand for excavating minor minerals. Lease was executed by District Magistrate, Sonbhadra in respect of Plot no. 246/1 to the extent of an area of 10 acres situated in Village, Gurdha, Tehsil Robertsganj, District Sonbhadra. Lease was executed for a period of three years in accordance with the provisions of U.P. Minor Mineral (Concession) Rules, 1963 (hereinafter referred to as "Rules 1963"). Smt. Pyari Devi commenced mining operation but vide order dated 29.06.2002, mining operation of 11 persons including Smt. Pyari Devi was prohibited. The order passed by District Magistrate referred to order of Additional District Judge dated 03.06.2002 in Review Application No. 2810 of 1992 directing for constituting 'Reserved Forest' in Plot No. 246/1, area 453 bighas and 17 biswas under Section 4 of Act, 1927. The Division Bench was also having a Special Appeal filed by one Bhairao Ram challenging judgement dated 4.10.2002 passed by learned Single Judge in Writ Petition No. 29926 of 2002 dismissing the same which has also arisen from similar orders as were passed by Additional District Judge and District Magistrate in the case of Smt. Pyari Devi and in that Special Appeal, an incidental question arose as to whether appeal was maintainable or not since it had arisen from the order of learned Single Judge wherein order of Additional District Judge was challenged. Counsel of Bhairao Ram contended that Additional District Judge had no jurisdiction to review appellate order and therefore, review order was without jurisdiction. This question was also considered by Division Bench in Smt. Pyari Devi Vs. State of U.P. and others (Supra). Considering merits of the matter, Division Bench, noticed factual background that State Government issued a notification dated 09.04.1969 published in U. P. Gazette dated 21.06.1969 under Section 4(1) of Act, 1927 declaring that it has been decided to constitute the land, as detailed in notification, as 'Reserved Forest'; the Notification included Plot No. 716 area 485 bighas and 15 biswas (out of which Plot No. 246/1 area 453 bighas and 17 biswas was carved out). A Writ Petition was filed before Supreme Court as Public Interest Litigation claiming that Adiwasis and other backward people using forest land as their habitat and means of livelihood will be deprived if State Government is permitted to declare entire land as 'Reserved Forest'. Therein various directions were issued by Supreme Court.
20. The scheme of Act, 1927 is that whenever State Government decides to constitute any land, a 'Reserved Forest', it shall issue a notification in official gazette specifying the situation and limits of such land and also appointing an officer named 'F.S.O.' to enquire into and determine the existence, nature and extent of any rights alleged to exist in favour of any person in or over any land comprised within such limits. This notification is contemplated under Section 4(1) of Act 1927. Section 6 of Act, 1927 contemplates that F.S.O. shall publish in local vernacular, in every town and village of neighborhood, specifying the situation and limits of proposed forest, expanding consequences and fixing a period and requiring every person claiming any right mentioned in section 4 or Section 5 of Act, 1927 within such period either to present to F.S.O. a written notice or to appear before him and state nature of such right. Section 7 contemplates an enquiry by F.S.O. The F.S.O. is supposed to pass an order under Section 11(2) regarding claim made by a person. Section 12 deals with the rights of pasture or to forest produce and under Section 15, an order is to be passed which may ensure continued exercise of rights so admitted. Section 17 contemplates an appeal against the order of F.S.O.
21. On Plot No. 246/1 Mahendra Singh and Rajendra Singh, sons of Bhupendra Singh had filed an objection staking their claim to be part of the aforesaid plot i.e. Area 26 bighas 8 biswas. This was allowed by F.S.O. and he recommended their land to be excluded from 'Reserved Forest' in view of directions of Supreme Court in Banwasi Sewa Ashram Vs. State of U.P. (Supra). Additional District Judge considered those orders of F.S.O in appeal and initially appeal was decided in favour of Mahendra Singh and Rajendra Singh but on a Review Application of State Government, the order was recalled and decided in favour of State directing that Plot No. 246/1 be reserved for constituting 'Reserved Forest'. This Court while considering validity of review order of Addl. District Judge, said once Additional District Judge passed an order for treating disputed land as 'Reserved Forest', no activity other than forest purpose could have been carried out on such land and for this purpose, provisions of Act, 1980 come into play. Court relied on a Supreme Court judgement in T.N. Godavarman Thirumulkpad Vs. Union of India, (1997) 2 SCC 267 wherein it was held that all on going non forest activities within any forest in any State throughout the country without prior approval of Central Government must cease. The said direction was given on 12.12.1996. Thus, Court said that State Government was obliged to stop all non forest activities in any forest area. Since petitioners, Smt. Pyari Devi and Bhairao Ram were claiming right to carry on operations on the land which was directed to be constituted 'Reserved Forest' by the order of Additional District Judge, such claim could not have been admitted as it was and it would have been contrary to the provisions of Act, 1980 and also directions given by Supreme Court in T.N. Godavarman Thirumulkpad (Supra).
22. Court also considered a submission that petitioners, Smt. Pyari Devi and Bhairao Ram, were not party before F.S.O. and Additional District Judge and held that those were the proceedings under Special Act giving right to the party to the proceeding on different stages and a person who was not party at any stage cannot be allowed to challenge order passed in those special proceedings. The two petitioners were lessee from State Government and cannot claim higher rights from the lessor i.e. State Government which has not challenged order of Additional District Judge in respect of Plot No. 246/1.
23. The Division Bench also considered the argument that Additional District Judge had no power of review. It found that Supreme Court in Banwasi Sewa Ashram (Supra) has clearly directed State Government to implement decisions given by Additional District Judge in appeals as well as in review. The argument that the Additional District Judge could not have entertained review was contrary to directions given by the Supreme Court, hence rejected. The relevant observations made by Division Bench in Smt. Pyari Devi Vs. State of U.P. and others (Supra) reads as under:-
"The argument of counsel for the appellant is in the teeth of the aforesaid direction and cannot be accepted. The judgments of the Apex Court are binding for all courts under Article 141 of the Constitution of India."
24. The Division Bench therefore upheld order of Additional District Judge passed in Review Application on 03.06.2002. The relevant extract of the judgement upholding the said order, reads as follows:
"From the foregoing discussions, the judgment of Additional District Judge dated 3rd June, 2002 cannot be said to be without Jurisdiction. The Additional District Judge while passing the order dated 3rd June, 2002 was within his jurisdiction and the said jurisdiction was exercised by the appellate Court in exercise of Jurisdiction conferred under Forest Act which is Central Act referable to Entry 17 A of the Concurrent List. The judgment dated 3rd June, 2002 which was challenged in the writ petition being a judgment passed by a Court in exercise of jurisdiction under Central Act, the special appeal is clearly barred under Chapter-VIII, Rule 5 of the Rules of the Court and the submission of counsel for the appellant that present special appeal is maintainable cannot be accepted."
25. Learned Single Judge in Ravindra Kumar Singh and Others Vs. Additional District and Sessions Judge (supra), when was confronted with another Single Judge Judgment in Ved Prakash Garg (Supra), said in para 14 of the judgment, as follows:
"14. Much emphasis has been laid by learned Counsel for the petitioners on the subsequent judgment of the learned Single Judge in Ved Prakash Garg's case (supra) in which the learned Single Judge in view of the stand taken by the State quashed the order or review as being without jurisdiction. The judgment in the said case cannot help the petitioners in the present case due to following two reasons:
(a) The attention of the learned Single Judge in Ved Prakash Garg's case (supra) was not invited to the earlier Division Bench in Smt. Pyari Devi's case (supra), which categorically laid down that Additional District Judge has power of review. It is relevant to note that judgment in Pyari Devi's case was with regard to same notification under Section 4 of the Forest Act in which notification the land on which petitioners claimed right of mining lease was also included. The Division Bench judgment having held that Additional District Judge had power of review was a binding precedent and the judgment given by learned Single Judge without noticing the said judgment cannot be followed as good precedent.
(b) Learned Single Judge in Ved Prakash Garg's case (supra) has decided the the case on the basis of concession made by the learned Advocate General at the bar that the Additional District Judge has no power to review its own order. The judgment was thus, in fact, based on concession given by the learned Advocate General to the effect that Additional District Judge has no power of review. The decision is based only on the said statement and does not lay down any ratio to be laying down any ratio or precedent to be followed." (Emphasis added)
26. Court also held that though in Ved Prakash Garg and Others (Supra), review order dated 31.05.2003 was set-aside but that would not apply in all the cases and would be confined to cases which were before learned Single Judge in Ved Prakash Garg and others and would not be applicable to Ravindra Kumar Singh. Court also said that once notification under Section 4 is issued, various rights on such land are barred by section 5, to be exercised, and it is a kind of injunction regarding accrual of rights after issue of notification under Section 4. Court said that Section 5 contemplates that no rights shall be acquired in or over the land comprised in a notification under Section 4 except by succession or under a grant or a contract made or entered into or on behalf of Government or some persons in whom such rights were vested when a notification was issued. The injunction under Section 5 cannot be diluted or done away by any administrative decision by State Government. By virtue of Section 5, no right can be acquired by any person in respect to a land notified under Section 4. Court also dealt with the argument that notification under section 20 has not been issued, therefore, no restriction can be placed and said, in para 22 of the judgement, that even if notification under Section 20 of Act, 1927 has not been issued, Section 5 of Act, 1927 would operate by virtue of notification under Section 4 and land included in Section 4 Notification cannot be said to be a land in which non forest activities i.e. mining operation be permitted as per observations of Supreme Court in T.N. Godavarman Thirumulkpad (Supra). It also held that once an order has been passed by Additional District Judge under Section 17 as an appellate authority, State Government has no power to alter the said decision by taking an administrative decision. In para 28 of the judgement, Court also considered the submission that so long as notification under Section 20 is not issued, State Government was entitled to take the land as not belonging to Forest department but to Revenue department and said that after issue of notification under Section 4, Section 5 comes into play and prohibition of accrual of any right operate after issue of notification under Section 4, hence no decision can be taken by State Government contrary to section 5 of Act, 1927. Mere fact that notification under Section 20 has not been issued, would not empower State Government to take an administrative decision to treat disputed land included under Section 4 as land, belong to Revenue Department or to permit mining in the said land. No such power is conferred upon State Government even if no notification under Section 20 has been issued. Para-28 of the judgment is quoted for ready reference as under:
"28. The last submission of the petitioners that Section 20 notification having not been issued, the State Government was fully entitled to treat the land as land not belonging to the Forest Department and the same as belonging to the Revenue Department. As noted above, after issuance of notification under Section 4, Section 5 comes into play and prohibition of accrual of any right operate after issuance of notification under Section 4. The issue as to whether the State Government by any administrative decision can take a decision contrary to Section 5 of the Forest Act has already been discussed above. The fact that Section 20 notification has not yet been issued does not empower the State Government to take an administrative decision to treat the land included in notification under Section 4 as a land belonging to the Revenue Department or to permit mining in the said land. Thus non issuance of notification under Section 20 of the Forest Act does not empower the State Government to take any administrative decision to permit any mining operation in the land included in the notification under Section 4 of the Forest Act." (Emphasis added)
27. Thus, in respect of land in dispute, it is admitted that Notification under Section 4 was already issued and thus Section 5 became operative. Counsel for petitioner admits that the land in question belong to Ravindra Kumar Singh who has already lost the matter before this Court and his writ petition has been dismissed while judgment of appellate authority i.e. Additional District Judge allowing review of the State Government has been affirmed and become final.
28. Petitioner's counsel submits that he has not purchased land from Ravindra Kumar Singh and it is only 'Crusher Plant, which was already operating for the last more than 10 years and he has not purchased land at all. In our view, prohibition of Section 5 applies to land which has been notified under Section 4. The aforesaid land which according to petitioner belong to Ravindra Kumar Singh, issue has already been finalized by this Court by dismissing writ petition of Ravindra Kumar Singh. Therefore, no activities other than activities of forest purpose can be carried out on the land in question in view of injunction under section 5 of Act, 1927. The restriction under section 5 of Act, 1927 is applicable in respect of the land notified under section 4 and it has nothing to do with notification under Section 20. This aspect has been dealt with in detail by this Court in writ petition in which the land in dispute, itself, was up for consideration and said judgment has become final. Therefore, in no manner, petitioner can be allowed to carry on mining operation which is an activity not connected with forest purpose on the land in question, and thus, claim of petitioner in our view, has rightly been rejected by Collector/District Magistrate by the impugned order.
29. Knowing the fact that in respect to land in dispute, matter has already attained finality before this Court when writ petition of Ravindra Kumar Singh was dismissed, still petitioner, in a circuitous way has not only attempted to continue mining operations on the said land but gone to the extent of contending that the judgement passed by this Court in a matter related to land in dispute itself should be ignored as per incuriam though the judgement is binding on the parties and their successors, legal representatives etc., hence, in our view, petitioner in filing this writ petition has not come with clean hands and continuous litigation including the present writ petition is nothing but a gross abuse of process of law. The writ petition, therefore, deserves to be dismissed with cost.
30. In view thereof, the writ Petition is dismissed with cost which we quantify as Rs. 50,000/-.
Order Date :- 11.9.2019 A. Mandhani/AK/P.S.