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2009 DIGILAW 17 (SIK)

PHUCHUNG BHUTIA v. STATE OF SIKKIM

2009-11-24

A.P.SUBBA, AFTAB H.SAIKIA

body2009
JUDGMENT L. CHAKRABORTY, J. ( 1 ) LEARNED counsel for the petitioner as well as Mr. Karma Thinlay, learned State counsel representing the State of Sikkim/official respondents. ( 2 ) THE impugned appellate order dated 14-5-2008 passed by the Appellate Authority-cum-Conservator of Forest, Territorial Circle, Forest Environment and Wildlife Management Department, Government of Sikkim, Gangtok in Misc. Appeal No. 5 of 2007 confirming and upholding the judgment and order dated 7-4-2007 passed by the Deputy Conservator of Forest (T), East District, Gangtok in Misc. Encroachment Case No. 656 of 2007 is under challenge in this writ proceeding filed under Article 226 read with Article 227 of the Constitution of India. ( 3 ) THE factual matrix of the case in brief as has been narrated in the pleadings is that the petitioner is the owner of 4 (four) plots of land situated at Sawney, Kumrek Block. Out of those four plots, two plots were inherited by him by way of inheritance from his father and the rest two plots he purchased subsequently. The entire land of the petitioner has been surrounded by reserve forest on the north and east. It is stated that there has been kuccha road proceeding from the main road up to the Jhora (big drain) which is situated on the private property of the petitioner from time immemorial. This road was not constructed by the petitioner or by his father but is in existence from time immemorial. It is contended that this is the only road for access and egress from the petitioner's private land. It is further mentioned that there is no alternative way to reach the petitioner's property from the main road unless the petitioner make use of small portion of the road passing through the forest land. As such the private land of the petitioner is landlocked in North, East and West side and waterlocked in the southern side. ( 4 ) THE road in question is the only out-let for the people of the locality including the petitioner for using the same leading up to the main road i. e. Rangpo-Rorathang Road. As such the private land of the petitioner is landlocked in North, East and West side and waterlocked in the southern side. ( 4 ) THE road in question is the only out-let for the people of the locality including the petitioner for using the same leading up to the main road i. e. Rangpo-Rorathang Road. ( 5 ) THE pleaded case of the petitioner is that the petitioner has been served with a show cause notice dated 26-2-2007 issued by the respondents under the signature of the Deputy Conservator of Forest (T), respondent No. 3, which was received by the petitioner on 4-3-2007 alleging that it has been reported and complained to the authority that the petitioner had encroached the forest land by constructing an approach road and quarrying in the Khasmal forest land at Kumrek/ Sawney Rangpo of which he was in unauthorised occupation and accordingly he was summoned to appear in person before the said officer on 6-3-2007. While the petitioner was preparing the show cause against the said notice he was again served with another notice dated 2-3-2007 sent by the Range Officer, Singtam Range calling upon the petitioner to vacate the quarry area being utilised by him at Kumerk and to stop the road which he was utilising for transportation of sand, stone and stone chips. ( 6 ) BEFORE he could file reply against those two show cause notices, an undated notice was issued which was received by him on 21-3-2007 whereby he was informed that the road within Site Reserve Forest at Kumerk/ Sawney was being closed permanently and if the petitioner had any moveable properties inside, he was informed to take out the same immediately. ( 7 ) THE petitioner has submitted his show cause on 21-3-2007 denying all the charges of encroachment and stating clearly that the Joint Inspection Report submitted to him does not reflect or indicate any such unauthorised occupation of any forest land and the said report has also indicated that there is only road from the main road to jhora which is 165 Mtrs. or 165 Mtrs. X 4 = 660 m2 within the reserve forest and road reserve within the petitioner's private holding and that the said joint inspection report cannot be the basis for issuance of a show cause notice in the manner it is done. or 165 Mtrs. X 4 = 660 m2 within the reserve forest and road reserve within the petitioner's private holding and that the said joint inspection report cannot be the basis for issuance of a show cause notice in the manner it is done. ( 8 ) THE respondent No. 3 after hearing the parties vide impugned order dated 7-4-2007 held that the petitioner had illegally encroached and unauthorisedly used and occupied Site Reserve Forest and had also illegally dumped/stocked stones at Kumerk Khasmal and accordingly exercising power under Section 57 of the Sikkim Forests, Water Courses and Road Reserve (Preservation and Protection) Act, 1988 (for short, 'the Act') the respondent No. 3 ordered that the approach road being used by the petitioner for quarry site and crusher unit measuring 0. 285 m passing through Site Reserve Forest be closed and the petitioner was liable to be evicted therefrom for using the Reserve Forest and Kumerk Khasmal for non-forestry purpose. However, it was clarified that it would be open for the petitioner to have jeepable approach road through his private land and only pedestrian would be allowed through the forestland without causing any damage to the forest after obtaining clearance from the Government. ( 9 ) BEING aggrieved by the impugned order aforesaid, the petitioner moved before the higher authority on appeal i. e. Conservator of Forest, Territorial Circle, Gangtok/respondent No. 2, who in turn by impugned order dated 14-5-2008 upheld and confirmed the findings and views expressed by the respondent No. 3 in his order dated 7-4-2007. ( 10 ) BEING highly dissatisfied with above orders the petitioner has challenged the same by filing this writ petition. ( 11 ) WE have heard both the parties at length. ( 12 ) MRS. Chakraborty, learned counsel for the petitioner has initiated her arguments basically emphasizing that the authorities mainly respondent No. 3 acted illegally and without jurisdiction as the said authority had no power under Section 57 of the Act to act in the present manner as the said provision of law is not applicable to the petitioner. ( 12 ) MRS. Chakraborty, learned counsel for the petitioner has initiated her arguments basically emphasizing that the authorities mainly respondent No. 3 acted illegally and without jurisdiction as the said authority had no power under Section 57 of the Act to act in the present manner as the said provision of law is not applicable to the petitioner. The basic thrust of her argument is that it is apparent on the face of the records that there is no allegation of encroachment or running of quarry against the petitioner as all allegations of encroachment and running of quarry have been directly made against his son and the same is reflected from the affidavit filed on behalf of the official respondent itself. ( 13 ) HER second leg of argument is that the decision to close the road was taken much before he was given an opportunity of hearing and the same is evident from the undated notice which informs that the road was closed permanently and the said communication he received on 21-3-2007 and he was heard only on 4-7-2007, the date on which this impugned order was passed. ( 14 ) FOR the sake of convenience, it would be prudent and apt to quote the undated notice, which was received by the petitioner on 21-3-2007: "in THE OFFICE OF THE DEPUTY CONSERVATOR OF FOREST (T) EAST AT GANGTOK notice to, shri Phuchung Tshering Bhutia Swaney, Rangpo P. O. and P. S. Rangpo East Sikkim. This is to inform you that the road within Site Reserve Forest at Kumerk /sawney is being closed permanently. If you have any movable properties inside, you are hereby informed to take out the same immediately. Trespass inside the Reserve Forest and use of Reserve Forest land for non-forestry activities attracts penal action under the provisions of Sikkim Forests, Water Courses and Road Reserve (Preservation and Protection) Act, 1988, Indian Forest Act, 1927 and Forest (Conservation) Act, 1980. Sd/-Deputy Conservator of Forest east Territorial Division gangtok" ( 15 ) IN support of her arguments, the learned counsel for the petitioner has drawn our attention to the relevant portion of the Act basically Section 18 and 57, which run as under: "power to stop ways and water courses in reserve forests. 18. Sd/-Deputy Conservator of Forest east Territorial Division gangtok" ( 15 ) IN support of her arguments, the learned counsel for the petitioner has drawn our attention to the relevant portion of the Act basically Section 18 and 57, which run as under: "power to stop ways and water courses in reserve forests. 18. The Forest Officer may, with the previous sanction of the Government or any officer duly authorised by it in this behalf, stop any public or private way or water course in a reserved forest, provided that a substitute of the way or water course so stopped, which the Government deems to be reasonably convenient, already exists, or has been provided or constructed by the Forest Officer in lieu thereof. Penalty for unauthorisedly taking possession Of land constituted as reserved forests 57. (1) Any person who is unauthorised occupation of forest land may without prejudice to any other action that may be taken against him under any other provisions of the Act or any other law for the time being in force, be summarily evicted, by a forest officer not below the rank of a Deputy Conservator of Forests having jurisdiction over the said forest land and any building or other construction erected thereon shall, if not removed by such person within such time as the Deputy Conservator of Forests, may fix, be liable to forfeiture: provided that before evicting a person under this sub-section he shall be given a reasonable opportunity of being heard. (2) Any property forfeited under sub-section (1) shall be disposed of in such manner as the Deputy Conservator of Forests may direct and the cost of removal of any crop, building or other work and all works necessary to restore the land to its original condition shall be recoverable from the persons evicted in the manner as if it were an arrear of land revenue. (3) Any person aggrieved by an order of the deputy Conservator of Forests under subsections (1) and (2) may, within a period of one month and in such manner as may be prescribed, appeal against such order to the Conservator of Forests. (3) Any person aggrieved by an order of the deputy Conservator of Forests under subsections (1) and (2) may, within a period of one month and in such manner as may be prescribed, appeal against such order to the Conservator of Forests. " ( 16 ) RELYING on Section 18 it is argued by the learned counsel for the petitioner that no Forest Officer has a right to stop any public or private way including the water course in a reserve forest without any previous sanction of the Government or officer duly authorised or on his behalf. However, this power may be exercised by providing a substitute way which has not been done in the instant case. As stated by the learned counsel for the petitioner, the road in question is the only access and way for the petitioner to get the connectivity with the main road and before issuing the notice particularly the undated notice received on 21-3-2007, no substitute way has been provided for the convenience of the petitioner when the road has been used by the petitioner from time immemorial and as such the impugned orders passed on basis of those notices are unauthorised, illegal and liable to be quashed. ( 17 ) INSOFAR as Section 57 of the Act is concerned, it is submitted that this provision is applicable and enforceable only in case of unauthorised possession of the forest land. In the instant case, admittedly it is the petitioner's son who has been alleged by the authority to be in unauthorised occupation and running the quarry. In view of the accepted factual position, the application of this Section in passing the impugned order against the petitioner is ex facie illegal, bad in law and without jurisdiction and the same is also liable to the quashed. ( 18 ) SUPPORTING the impugned orders, Mr. Thinlay, the learned State Counsel has vehemently argued that the petitioner is an en-croacher as he has illegally occupied and has been using the Government land including the reserve forest land and road for non-forestry purpose and for khasmal land and for dumping the illegal quarry materials and as such the authorities have very much acted within the provision of law and especially there is no illegality or irregularity committed by the respondent No. 3 by passing the impugned order under Section 57 of the Act. ( 19 ) MR. ( 19 ) MR. Thinlay has also drawn our attention to the submission recorded by the respondent No. 3 in his impugned order dated 7-4-2007 wherein it is observed that according to the learned State Counsel the petitioner has himself admitted that he has encroached the land and is running a quarry in question and also in rejoinder filed on 12-3-2009 filed by the petitioner at page 93 after sub-paragraph (j) of paragraph 7 the petitioner himself has said that he is no longer running the crusher unit and was not using the quarry and not claiming the right to use the road for his quarry business. ( 20 ) MR. Thinlay has also drawn our attention to paragraph 34 of the counter-affidavit filed by State respondents in which it has been specifically stated that though the licence of the quarry is in his son's name Pintso Namgyal Nadi, but virtually the petitioner himself is involved in the business of quarry. ( 21 ) WE have given our due consideration to the arguments so advanced by the learned counsel representing the parties. We have also meticulously scrutinised, analysed and scanned both the impugned orders as well as the notices as mentioned above issued to the petitioner by Respondents No. 2 and 3 as well as the reply to show cause submitted before the authority by the petitioner. ( 22 ) IT is admitted fact that the quarry stands in the name of the petitioner's son Pintso Namgyal Nadi but surprisingly instead of issuing the notice to the son of the petitioner the respondents had issued the notice to the petitioner as mentioned above. It is categorically stated in the counter-affidavit particularly in paragraph 12 that the petitioner's son is running the quarry using the road and it is the petitioner's son in whose name the licence was issued for running the quarry within his own land and also in Khasmal forest land in violation of Section 57 of the Act. It is also stated in the same paragraph that the petitioner has constructed a road measuring 165 m long with 4m width approximately i. e. 660 sq. m. and the same was being used by the petitioner's son's trucks to reach the stone crusher and quarry site which passed through the reserve forest. It is also stated in the same paragraph that the petitioner has constructed a road measuring 165 m long with 4m width approximately i. e. 660 sq. m. and the same was being used by the petitioner's son's trucks to reach the stone crusher and quarry site which passed through the reserve forest. ( 23 ) UNDER such circumstances, it transpires that it is the petitioner's son who is running the show as regards operation of the quarry as well as the use of the road, but however, surprisingly notices have been issued to the petitioner. All the three notices as mentioned above have been issued in the name of the petitioner. Even there is no whisper of any sort of allegations against the petitioner. Since there is no direct and acceptable allegations levelled against the petitioner as regards the offending activities, we are of the considered view that the impugned orders including the notices have no leg to stand. ( 24 ) ACCORDINGLY, we do quash and set aside both the impugned orders. In the result, this writ petition stands allowed. However, there shall be no order as to costs. Petition allowed. --- *** --- .