Jharkhand High Court
Jharkhand Sales Agency Pvt. Ltd vs State Of Jharkhand on 6 February, 2019
Equivalent citations: 2019 (3) AJR 89, (2019) 2 JCR 624 (JHA)
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.415 of 2019
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1. Jharkhand Sales Agency Pvt. Ltd., a company incorporated under the Companies Act, having its registered office at and unit situated at Kundalbagi, P.O. & P.S. Katkamdag, District Hazaribagh, through one of its Director Sri Abhishek Singhania, son of Sri Kamal Kishore Singhania, aged about 39 years, resident of Jaiswal Colony, P.O., P.S. & District Ramgarh.
2. Sri Abhishek Singhania, son of Sri Kamal Kishore Singhania, aged about 39 years, resident of Jaiswal Colony, P.O., P.S. & District-Ramgarh.
...... Petitioners Versus
1. State of Jharkhand, through the Secretary, Department of Registration, Revenue and Land Reforms, Government of Jharkhand, P.O. Dhurwa, P.S.-Jagarnathpur, District-Ranchi.
2. Secretary, Department of Forest Environment and Climate Change, Doranda, P.O. & P.S. Doranda, District-Ranchi.
3. Commissioner, North Chota Nagpur Division, Hazaribagh, P.O., P.S. & District Hazaribagh.
4. Deputy Commissioner, Hazaribagh, P.O., P.S. & District- Hazaribagh.
5. Divisional Forest Officer, Hazaribagh, West Forest Division, P.O., P.S. & District Hazaribagh.
6. Sub Divisional Officer, Hazaribagh, P.O., P.S. & District Hazaribagh.
7. Circle Officer, Katkamsandi, Hazaribagh, P.O., P.S. & District Hazaribagh.
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioners : Mr. Suraj Singh, Adv.
For the Respondents : Ms. Atanu Banerjee, G.A.
: Ms. Moushmi Chaterjee, Adv.
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03/Dated 06th February, 2019
1. This writ petition has been filed under Article 226 of the Constitution of India wherein following prayers have been made:-
i. In the nature of mandamus commanding upon the respondent authorities to show cause as to how and under what authority they have demolished the boundary wall and other structures of the petitioner no.1 and are preventing it from carrying out construction and other activities at the plant site which is situated over the land purchased by it through registered sale deeds;
ii. For a further writ/order/direction restraining the respondents from interfering with the possession of the petitioner no.1 over plot no.436 of khata no.90, village Marhand, P.S. Katkamsandi, District Hazaribagh or interfering with the construction activities being carried out at the plant site of the petitioner no.1 situated over the aforesaid land.
iii. For a further writ/order/direction in the nature of certiorari for 1 quashing the entire proceeding initiated against the petitioner no.1 (wrongly mentioned as Jharkhand Sponge factory) purported to be under the Bihar Public Land Encroachment Act, 1956 being BPLE Case No. 07/2017, notice whereof has been served on the petitioner no.1 on 15.01.2019 vide letter no. 2019 dated 11.01.2019 (Annexure-9);
2. The brief facts of the case of the petitioner as per pleading made in this writ petition is that pertaining to Plot No.436 Khata No.90, Village Marhand, Thana No. 116, P.S. Katkamsandi, District Hazaribagh, comprising that Area of 64.25 acres was recorded in the name of ex- landlord namely Liladhar Misir as his Khas land, the said Liladhar Misir on or about 08.12.1936 by a registered settlement being Deed No. 2301 of 1936 transferred the same in favour of one Prabhod Chandra Mitra, who came in possession of the same. He got his name mutated in the Register of the Serista of the then Landlord and paid rent to him and in token thereof rent receipt were issued in his favour.
The Said Prabhod Chandra Mitra by virtue of a Hukumnama transferred the said land to one Shrikant Singh Mahapatra, on 15.01.1945 and came in possession over the same and got his name mutated in the office of Circle Officer Katkamsandi, and received rent receipt till 1964-
65. The State Government has come out with a notification being Notification No.10166/52-17R dated 02.01.1953 under Section 29 of the Indian Forest Act, 1927 by which some lands within the District of Hazaribagh including Plot No.436 of village Marhand was declared to be a protected Forest till the rights of Government and Private Persons comprised within the said land is not enquired into and recorded as laid down under Section 29(3) of the said Act.
The said Shrikant Singh Mahapatra thereafter applied for release of the said Plot No. 436 from forest land which was registered as Case No. 165/62-63 before the competent authority i.e. Forest Settlement Officer Hazaribagh on detailed enquiry, 47.73 acres of the said Plot No. 436 was release in favour of the Shrikant Singh Mahapatra by Forest Settlement Officer, Hazaribagh on 26.08.1963 and accordingly by virtue of an order passed on 22.05.1975, plot No.436 was released from protected forest in the year 1975. The said Shrikand Singh Mahapatra 2 sole the aforesaid land in favour of the Bhola Nath Mitra by a registered sale deed No.8269 dated 25.08.1965 and put the purchaser in possession thereof his name mutated in the office of Circle Officer Katkamsandi, and paid rent to the State of Bihar, in token whereof rent receipt were issued.
The Said Bhola Nath Mitra while thus in possession has transferred the portion of the said land in favour of Sri Harsh Verma who came in possession over the part of the land who has transferred the land by virtue of registered deed dated 11.03.2008 sold and transferred 9.23 acres of the aforesaid plot no. 436 in favour of the petitioner no.1. Thereafter, the petitioner has purchased the aforesaid land in order to set up a Mini Project Integrated Steel Plant along with captive power plant (8 MW) kept power plant, the land was in his possession, the respondent without any notice to the petitioner had demolished the boundary wall on 12.01.2019 on the assumption that plot no.436 is protected forest under the notification no. 10166/52-17R dated 02.01.1953 thereby caused huge lost to the petitioner against which the complaints have also been made before the authority.
3. Learned counsel for the respondent have issued a notice on 11.01.2019 under the provision of Jharkhand Public Encroachment Act, directing him to appear before the Respondent No.5 on 19.01.2019 on the ground that against which this writ petition has been filed, questioning the jurisdiction of the authority under the provision of Jharkhand Public Land Encroachment Act, since it is not maintainable as because the stay land is raiyati in nature. The land is being presumed to be protected forest but it has been brought from the purview of the protect forest but without taking into consideration this aspect of the matter the notice has been issued.
4. Mr. Indrajit Sinha, learned counsel for the petitioner submitted that even in pursuance to the provision as contained under Section 29 of the Indian Forest Act, 1927 wherein as per the provision made under sub Section 3 before coming or with a notification for the hearing a land to be protected forest a detail enquiry is to be conducted till the final decision, the right of the authority will not be disturbed and hence according to him the said enquiry has not yet been concluded, therefore, during the pendency of the said enquiry issuance of notice or treating the land as Forest Act, is 3 not proper.
5. Learned counsel for the State has put his appearance through Mrs. Atanu Banerjee, who has raised preliminary objection regarding the maintainability of this writ petition on the ground that the show cause notice is under challenge. The petitioner has its opportunity to bring all the facts before the said authority for taking final decision but although the petitioner has put his appearance before the said authority but the adjournment has been sought for and without filing any response before the said authority, this writ petition has been filed, therefore, the same has not been entertained since the petitioner is raising the factual aspect that which can be only looked into by the authority concerned.
6. He submits that show cause notice can only be interfered with by the High Court sitting under Article 226 of the Constitution of India, only in condition that when it is without jurisdiction and if on fact it will be looked into by the High Court the same will be said to be exercised in absence of any cause of action reason being that the cause of action will only arise in case of any adverse order if passed by the authority after consideration of the reply but it is not that the adverse order will only be passed rather the authority if satisfied the proceeding initiated by virtue of said notification can also be dropped it it will be said that there is no cause of action therefore the writ petition may be dismissed rendering it as premature.
That merits it has been notification issued under Section 29 of the Indian Florest Act, 1927 has already been prepared whereby and whereunder the aforesaid land has been treated to be protected forest not only that, the notification under Section 30 of the Act, 1927 has also been issued therefore the contention which is being raised by the petitioner, is not proper. However he submits that since the petitioner is claiming that it has brought out of purview of Section 29 of the Act, 1927 the same will be raised before the competent authority for its adjudication.
7. Mr. Indrajit Sinha, learned counsel for the petitioner submits that the proceeding initiated by virtue of the impugned notice is fit to be quashed because the authority will at with biasness and therefore the same may be quashed.
48. Having heard the learned counsel for the parties on appreciation of their rival submissions, it is evident that the petitioner is claiming the title over the land in question on the ground that the same is not protected forest since it has been taken out from the purview of the notification issued by the State Government under the provision of Section 29 of the Indian Forest Act, 1927.
9. The petitioner has tried to impress upon the Court that on 12.01.2019 the boundary wall was demolished and therefore, he is having cause of action for interfere with the show cause notice has been issued dated 11.01.2019 by the competent authority as per the proceedings have been made in the Jharkhand Public Land Encroachment Act, hence admittedly it is within the jurisdiction of the authority and as has been settled by the Hon'ble Apex Court in the judgment rendered as quoted hereinbelow :-
Union of India & Anr. Vrs. Kunisetty Satyanarayan reported in (2006) 12 SCC 28 wherein the Hon'ble Apex Court by taking reference of the judgment rendered in the case of Executive Engineer Bihar Housing Board v. Ramesh Kumar Singh, reported in (2004) 3 SCC 440, Special Director vs. Ghulam Ulagappa vs. Divisional Commr., Mysore reported in (2001)10 SCC 639, State of U.P. v. Brahm Datt Sharma reported in (1987)2 SCC 179 has been pleased to hold that ordinarily no writ lies against a charge-sheet or show cause notice. The reason why ordinarily a writ petition should not be entertained against mere show cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the cause cause notice or after holding an enquiry the authority concerned may drop the proceeding and/or hold that the charges are not established. It is well settled of law that a writ petition lies when some right of any party is infringed. A mere show cause or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed that the said party can be said to have any grievance. In paragraph 15 it has 5 been held that writ jurisdiction is discretionary jurisdiction and hence such a discretion under Article 226 should not ordinarily be exercised by quashing a show cause notice or charge-sheet.
It is thus evident that a writ Court should not ordinarily interfere in the show cause notice at that stage rather it will be said to be pre- mature case and allegations if levelled against one or the other in the show cause notice does not give rise to the show cause notice because it does not amount of adverse order, which affects the rights of any party unless the same has been issued by a person having jurisdiction to do so.
Therefore, merely issuance of show cause notice cannot be said to be approval of a show cause action warranting the said person to invoke the extraordinary jurisdiction conferred under Article 226 of the Constitution of India however, High Court can quash a show cause if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal, as has been held by Hon'ble Apex Court in the case of Secretary, Ministry of Defence Vrs. Prabhash Chandra Mirdha reported in (2012) 11 SCC 565 wherein at paragraph 10 it has been held as under:-
"Ordinarily a writ application does not lie against a charge-sheet or show-cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide State of U.P. v. Brahm Datt Sharma, Bihar State Housing Board v. Ramesh Kumar Singh, Ulagappa v. Commr., Special Director v. Mohd. Ghulam Ghouse and Union of India v. Kunisetty Satyanarayana.)"
Normally a show cause notice is not to be quashed prior to the conclusion of the inquiry on the ground that the charge-sheet is quashed at the time of the conclusion of inquiry.
The judgment rendered in the case of State of Uttar Pradesh Vs. Brahm Datt Sharma & Anr. reported in (1987) 2 SCC 179 wherein at paragraph 9 their Lordships has been pleased to hold that, when a show cause notice is issued to a government servant under 6 statutory provision calling upon him to show cause, ordinarily the government servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at this stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the government servant and once cause is shown it is open to the government to consider the matter in the light of the facts and submissions placed by the government servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature.
10. That a show cause give only interfered with when it is beyond jurisdiction and admittedly it is not the case of the petitioner that the show cause notice is without any jurisdiction.
11. The petitioner is trying to impress upon the Court to conduct an enquiry with respect to his title in a proceeding under Article 226 of the Constitution of India.
12. This Court sitting under Article 226 of the Constitution of India that too when the petitioner has already put his appearance before the authority as would be evident from the original record produced by the respondent, from its perusal it is evident that the matter was posted on 19.01.2019 wherein the learned lower court appearing for the petitioner took title accordingly the authority have allowed time, posted the case on 21.08.2019 further requested for more time to submit the relevant documents, the authority accepting the request as fit to next date on 14.02.2019, the reference of the order dated 19.01.2019, 28.01.2019 and 05.02.2019 needs to be the contents shown as under:-
19.1.2019 the Ld lawyer Mr. Sanjeev Kumar Sinha had appeared on behalf of the Manager Mr. Santosh Kumar S/o-
Sri Ram Kewal Sharma and given a submission that the show cause could not be filed today due to paucity of time, and requested that in meantime the relevent documents would be produced on 24.01.2019. The next date may be fixed for 24.01.2019.
28.1.2019 the Ld lawyer Mr. Sanjeev Kumar Sinha had appeared on behalf of the Manager Mr. Santosh Kumar and requested that some more time may be given to file the show cause with relevant documents, hence the next date is fixed on 05.02.2019.
705.02.2019 The Ld lawyer G.C. Jain was present on behalf of opposite party and requested for more time to submit the relevant documents. The next date may be fixed on 14.02.2019. The Range Officer, Hazaribagh Range had appeared and submitted that the plot no. 436 in Marhand PF on which the Jharkhand Sponge Iron Factory was set up is a notified demarcated Protected Forest. The next date may be fixed on 14.02.2019.
13. It is evident from the orders that the petitioner has submitted that the jurisdiction of the authority is concerned and has taken time to file documents along with response, the authorities have allowed the time thrice therefore at this juncture interfered with the show cause at this threshold sitting under Article 226 of the Constitution of India will not be proper keeping the proposition laid down by the Hon'ble Apex Court as quoted hereinabove.
14. Learned counsel for the petitioner has insisted for passing the interim order for restraining the respondent authorities for further demolishing the construction made over the said land, on the ground that the order dated 12.01.2019, the boundary wall has been demolished but this Court after going across the order-sheet of the authority is quoted hereinabove as found. The petitioner is appearing and taking time without making any complaint before the authority with respect to the further demolition and hence there is no requirement to pass an interim order at this stage rather it would be appropriate and just proper to direct the authority to dispose all the proceeding after going through the records and documents which shall be presented by the petitioner if he so wishes as also by calling upon the records from the concerned competent authority it is a reasonable period preferable within eight weeks from the date of receipt of copy of this order.
15. This writ petition is, accordingly disposed of.
16. Needless to say that the authority while deciding the issue will not be prejudiced by any of the observation if any, made by this Court rather the authority will take its independent decision basing upon the relevant records, in accordance with law.
(Sujit Narayan Prasad, J.) Madhav 8