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2003 DIGILAW 625 (MP)

Mansoor Ali v. State of M. P.

2003-04-28

BHAWANI SINGH, S.L.JAIN

body2003
JUDGMENT : S.L. JAIN, J. 1. Being aggrieved by the order dated 29-11-2002, passed by the learned single Judge in W.P. No. 6467/2002, the appellant has filed this appeal under Clause 10 of Letters Patent. 2. The facts shorn of details and necessary for the disposal of this appeal are that Dy. Ranger, Jodhpur, Bargi Range, served the appellant and three others with a notice on 21-5-2002 (Annexure P-16) and informed them that land bearing Khasra No. 6/1, 6/2, 6/3 and 6/4, total area 2.80 hectares, is a part of forest land as per Notification, published in M.P. Rajpatra, dated 20-6-1986. The appellant was also informed that he is in illegal possession of the land bearing Khasra No. 6/3, area 1.20 hectares, which is a part of Reserved Forest. He was also called upon to submit all documents in support of his claim over the land before the Dy. Ranger, Jodhpur else proceedings under section 80-A of the Indian Forest Act (hereinafter referred to as the “Act”) will be taken against him. 3. The appellant submitted a reply thereto on 10-6-2002. It was put forth by the appellant in his reply that land bearing Khasra No. 6/3 was earlier part of Khasra No. 4, area 4.614 hectares. It was recorded in the name of Rajendra Gopal Singh in his Bhumiswami rights. The land was being used for agricultural purposes and various crops including ditch millet, peddy, gram, linseed, lentil and wheat were used to be grown on the land. Bank of Baroda obtained a decree against Rajendra Gopal Singh in execution of which the above land (Khasra No. 4) was attached and sold. The same was purchased by Devendra Kumar Jain. Out of the said land, the appellant purchased 1.20 hectares of land from Devendra Kumar Jain and got it mutated in his name. This 1.20 hectares of land was renumbered as Khasra No. 6/3. The appellant established a Hotmix plant on the land immediately after its purchase from Devendra Kumar Jain in the year 1994 and since then he is in continuous, peaceful and unobstructed possession of the land. 4. As per the appellant, he along with his reply submitted relevant documents in support of his claim; but without properly considering his reply, respondent No. 2 served him with an illegal notice under section 80-A of the Act. 4. As per the appellant, he along with his reply submitted relevant documents in support of his claim; but without properly considering his reply, respondent No. 2 served him with an illegal notice under section 80-A of the Act. It was stated in the notice that in a preliminary enquiry it was found that the appellant has encroached upon the forest land and has constructed a house thereon after cutting the trees standing thereon, thereby making himself liable for punishment. The appellant was called upon to show cause as to why he should not be dispossessed from the land, Coup No. PF-766 of Gwarighat, Bargi. The appellant submitted a reply to this notice before the respondent No. 2 on 25-10-2002. 5. Before any order could be passed on the notice under section 80-A of the Act, the appellant filed Writ Petition No. 6467/2002 challenging the notification No. 5/56/84/Ten/3, published in M.P. Rajpatra on 27-6-1987, by which in exercise of the powers under section 21 of the Act the State Government had declared the lands specified in the schedule of the notification as Reserved Forest on and from the date of notification. It is further put forth by the appellant that the land, bearing Khasra No. 4 alleged to have been purchased by said Devendra Kumar Jain was a Bhumiswami land. It was not a waste land belonging to the Government. A Bhumiswami land cannot be declared as a Reserved Forest. In the writ petition, the appellant prayed that show cause notice (Annexure P-25) and the proceedings taken up in consequence thereto as well as the Notification (Annexure P-27), so far as it relates to Khasra No. 4, be quashed. 6. Learned single Judge dismissed the petition after hearing both the parties at admission stage on the ground that no final decision has been taken on show cause notice and no interference is called for at that stage as far as Annexure P-25 is concerned. Regarding the notification (Annexure P-27), the learned single Judge observed that the notification was issued on 19-5-1984 and the same cannot be assailed after expiry of such a long period; and rejected the prayer on the ground of latches. 7. Being aggrieved by the order impugned, the appellant has come up in this appeal. 8. We have heard Shri lmtiaz Hussain, learned counsel appearing for the appellant. 9. 7. Being aggrieved by the order impugned, the appellant has come up in this appeal. 8. We have heard Shri lmtiaz Hussain, learned counsel appearing for the appellant. 9. The main thrust of the contention of learned counsel for appellant is that after the disposal of writ petition and during pendency of the appeal respondent No. 2 has passed the final order on the notice Annexure P-25, but in our considered view if the appellant feels aggrieved by this order, the same cannot be challenged in this appeal before us. In the writ petition the prayer was for quashing the show cause notice Annexure P-25 only and not the final order. We are further of the view that the learned single Judge rightly refused to interfere at the interim stage. 10. Regarding the notification Annexure P-27, the learned counsel for the appellant submitted that section 3 of the Act provides that the State Government may constitute only forest land or waste land which is the property of the Government, a Reserved Forest in the manner provided in Chapter II of the Act. In order to appreciate the contention of the learned counsel appearing for the appellant, it will be apposite to refer to section 3 of the Act which runs as follows:- “3. Power to reserve forests - The State Government may constitute any forest-land or waste land which is the property of Government or over which the Government has proprietary right, or to the whole or any part of the forest-produce of which the Government is entitled, a reserved forest in the manner hereinafter provided.” 11. Learned counsel for the appellant contends that the proceedings for declaration as a Reserves Forest were available only in respect of the land covered by section 3. This section covers forest land and waste land. Bhumiswami land is not covered by these categories, hence the notification under section 4 of the Act declaring Bhumiswami land as a Reserved Forest is ultra-vires. If the appellant or his predecessors-in-title had any grievance, they were free to submit their claim in respect of the land notified in the notification under section 6 of the Act. Section 9 of the Act provides that rights in respect of which no claim has been preferred under section 6, and of the existence of which no knowledge has been acquired by enquiry under section 7, shall stand extinguished. Section 9 of the Act provides that rights in respect of which no claim has been preferred under section 6, and of the existence of which no knowledge has been acquired by enquiry under section 7, shall stand extinguished. Right of appeal has also been provided against the order passed by the Settlement Officer, but no appeal has been filed and ultimately, a final notification under section 20 was issued. After the notification under section 20 of the Act the land included in the notification has become Reserved Forest. 12. Section 11 of the Act gives powers to the Forest Settlement Officer to proceed to acquire land in the manner provided by the Land Acquisition Act, 1894 and for the purposes of such acquisition the Forest Settlement Officer shall be deemed to be the Collector proceeding under the Land Acquisition Act, 1894. Since the appellant did not claim any right before the Settlement Officer under Clause (c) of section 6 of the Act, his rights stand extinguished under section 9 of the Act. 13. Learned counsel for the appellant submits that since the land in question was a Bhumiswami land, the notification under section 20 of the Act could not have been validly issued, therefore, the notification (Annexure P-27) should be quashed. Whether the land in question, was in Bhumiswami rights or not and whether it was forest land or not, are the questions which cannot be decided in this appeal. If the appellant had any objection, he should have challenged the notification under section 20 of the Act without any delay. The said notification issued on 19-5-1984 was assailed by the appellant for the first time on 12-11-2002 by filing the writ petition. The learned single Judge rightly dismissed the writ petition on the ground of latches. 14. Learned counsel for the appellant further submits that Article 226 of the Constitution prescribes no period of limitation. The appellant purchased the land in the year 1994. He had no knowledge of notification dated 19-5-1984, therefore, he could not have challenged the same earlier. The contention cannot be accepted. It is true that Article 226 of the Constitution prescribes no period of limitation but ordinarily no petition under it can be entertained unless it is made soon after the right sought to be protected is infringed. 15. He had no knowledge of notification dated 19-5-1984, therefore, he could not have challenged the same earlier. The contention cannot be accepted. It is true that Article 226 of the Constitution prescribes no period of limitation but ordinarily no petition under it can be entertained unless it is made soon after the right sought to be protected is infringed. 15. No relief is ordinarily granted to a person who does not seek his remedy with due diligence. An aggrieved party who wants the High Court to exercise extraordinary powers under Article 226 of the Constitution must be very vigilant and seek the relief within a reasonable time. If he fails to do so and has no satisfactory explanation for the delay then his petition is liable to be thrown out in limine. Of course, no hard and fast rule can be fixed as to what will be a reasonable time in a given case and a question as to whether a party is guilty of the latches shall depend upon the facts of each case. The appellant in his writ petition did not give any explanation regarding his failure to assert his claim at an earlier date. His explanation before us for the first time that as he purchased the land in the year 1994 he had no knowledge of the notification cannot be accepted. 16. If the land could not have been declared as Reserved Forest, the predecessors-in-title of the appellant could have raised the objection when notification under section 3 was published. When the notification was published in the official Gazette, the persons who were then the owners of the land could have raised the objection. If the predecessors-in-title of the appellant under whom the appellant claims did not raise any objection, the subsequent purchasers cannot have fresh cause of action. The appellant could not give any explanation regarding the failure of his predecessors-in-title to assail the respondent's action at an early date. Delay defeats equity and if for long time the injured person sleeps over his rights without any reasonable excuse, his chance of success in the writ petition becomes more slander and the Court may throw out the writ petition on the ground of even a short and unexplained delay. Delay defeats equity and if for long time the injured person sleeps over his rights without any reasonable excuse, his chance of success in the writ petition becomes more slander and the Court may throw out the writ petition on the ground of even a short and unexplained delay. Ordinarily no petition under Article 226 of the Constitution will be entertained unless it is made soon after the right sought to be protected is infringed and no relief ordinarily is granted to a person who does not seek remedy with due diligence. 17. The Reserve Forest was declared about 19 years ago. It will not be proper to unsettle the settled things after such a long period. Where the learned single Judge dismissed the petition under Article 226 of the Constitution, the appellate Bench would normally be reluctant to interfere with the order. Even otherwise, the petitioner could not satisfy us that there are strong reasons for interfering with the discretion exercised by the learned single Judge. The learned single Judge rightly declined the relief prayed for on the ground of latches. We are not inclined to take a different view of the matter. It has been uniform practice of this Court not to entertain applications not filed within reasonable time from the date of the order impugned. The delay of about more than 18 years is certainly inordinate. 18. In view of the above discussion, we do not find any reason to interfere with the order under challenge. The appeal is devoid of any merit and the same is dismissed in limine.