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2009 DIGILAW 368 (PAT)

Md. Naseem v. State of Bihar

2009-03-03

body2009
ORDER 1. The petitioner who faces prosecution in Case No. 150 C 3 of 2004 under Secction 27, 41, 42 and 26(g) of the Indian Forest (Bihar Amendment) Act, 1989 (hereinafter referred to as "the Amendment Act") and Sections 29 and 32 of the Wild Life Protection Act, 1972 (hereinafter referred to as "the W.L.Act") has prayed for the quashing of the entire criminal proceeding. 2. On receiving a written report from one Rajendra Yadav, Forest Guard, Pad am Sub Area, the Forest Range Officer, Jamalpur, made a written request to the Divisional Forest Officer requestin for taking necessary legal actions against the accused persons. 3. Briefly stated the prosecution case is that while Forest Guard, Rajendra Yadav, was on patrolling duty under the leadership of Forest Area Officer, along with other forest guards in Patan Nauagadhi Reserve Forest, the alleged accused persons were found removing stones stealthily at the railway loading site with the help of labourers. It was alleged that the accused persons by mode of blast method excavated the stones, boulders and kept the same within the Reserve Forest Area and after converting them they stacked the same on the railway plot adjacent to old quarry. It was alleged that generally after extracting stones from Government Forest, they were being stocked on railway plot at a distance of 10 feet from the forest border wherefrom they were sent to different destinations on forged documents. It is further alleged that the accused by claiming themselves to be lease holders for last 20 years are extracting stones on a large scale by use of explosive and on being objected to from doing illegal mining they extend threats to the armless forest workers who are attacked by labourers on being inspected by them. It is further alleged that due to extraction of stones by use of explosives within Wild Life Sanctuary the peace and place of wild life was being destroyed. The seized stone metal and boulders are said to be lying at the place of the occurrence as it is and they have been marked by lines. 4. On 19.4.2002 the Forest Area Officer, impleaded as O.P. No.3 herein submitted his written report to the Divisional Forest Officer, Munger Forest Division, through the proper channel. The seized stone metal and boulders are said to be lying at the place of the occurrence as it is and they have been marked by lines. 4. On 19.4.2002 the Forest Area Officer, impleaded as O.P. No.3 herein submitted his written report to the Divisional Forest Officer, Munger Forest Division, through the proper channel. It has been stated in the report that in view of the nature and facts of the crime explained by the Forest Guard on 18.4.2002 he went to the place of occurrence for investigation i.e. Nauagardhi, Thana No. 217, plot No. 1524 and 14/1975 respectively. It is alleged that by use of explosives activities of extraction of stones within the forest areas were found. The seized stones were marked by lime. The map of the broken land has been prepared after comparison with the notified map. It was further stated that under Sections 38 and 4 of the Forest Act, Nauadgadhi Thana No.117 plot No. 1524 and Patan Thana No. 217 plot No. 14/275 is notified Reserve Forest and under notification No.; 711-VIF-20/46R dated 28th January, 1947 under Section 2(4) (IV) of the Forest Act extracted stones are forest produce. It was further mentioned that the accused persons have intentionally violated Sections 26(g), 41, 42 of the Amendment Act and Sections 29 and 32 of the W.L.Act. 5. It has been submitted by the learned counsel for the petitioner that on 10.12.1986 an agreement of lease was signed by the Collector, Munger on behalf of the Governor of Bihar, and R.P. Singh, Attorney Holder of Hirdo Mar Mineral Corporation on behalf of the Corporation. The District Mining Officer, Munger was one of the witnesses. All tracts of land situated at Mauza Nauagardhi (Dasdwar Hill) Plot No. 1524P, Thana 117 was given on lease from 2nd Day of July, 1986 for a period of three years. The petitioner and one Nobadh Yadav jointly applied for mining lease on plot No. 1524P area 25 acres, Mauza Nawagarhi (Dasdwar Hill), Thana No. 177 and on 1.12.1990 an agreement of lease was signed by the Collector, Munger on behalf of the Governor of Bihar and the petitioner and Nabodh Yadav wherein the above mentioned area was given on lease for mining of stones under the Bihar Minor Mineral Concession Rule, 1972 for a period of three years to the petitioner and said Nabodh Yadav. It is further said that petitioner on the strength of the aforesaid lease deed has been engaged in mining operation since 1989 and after extracting stones stored the same at the site and had also supplied some of stones and boulders to the buyers whereas the remaining lay at the site as the buyers were not coming to take the stones. It is further said that after expiry of the lease period the petitioner filed an application praying for the renewal of the mining leas but since the application for renewal was filed late the application was rejected. Thereafter the petitioner filed an application for renewal of mining lease before the Commissioner, Mines, Govt. of Bihar, which is still pending for disposal. 6. It is further said that in the month of August, 2000, all the mining operations in the district of Munger was stopped by the order of the District Magistrate, Munger, whereunder the petitioner also stopped the mining of stones at his sites. It is said that the stocks of stones which were extracted by the petitioner under valid lease granted by the Governor of Bihar are still lying at the site for which the petitioner has already paid royalty etc., to the Mines Department, Govt. of Bihar. 7. The petitioner submitted that though the Govt. of Bihar in the Department of Forest has continuously been stating that the area has been notified to be reserved forest vide notification No. 711-VI-F20/L-16-R, dated 28th January, 1946, no such notification declaring the area to be reserved forest has been issued by the Govt. of Bihar till date. It has also been submitted that under the said notification one Raj Kishore Prasad Sinha No.1, Sub Deputy Magistrate and Sub. Deputy Collector, were made the Forest Settlement Officer to inquiry, determine and demarcate the forest in the villages of the Banaili Estate never demarcated or held any enquiry to determine the boundary of forest land in the village and as such there is no notification under Section 20 of the Forest Act declaring the area to be reserved forest from the date fixed by the notification of the Government. 8. In the case of Bhagwan Sahai Vs. Divisional Forest Officer, AIR 1947 Pat 264 it was held that forest does not become reserved forest until notification under Section 20 of the Forest Act is issued. Then again in Gala Ho Vs. 8. In the case of Bhagwan Sahai Vs. Divisional Forest Officer, AIR 1947 Pat 264 it was held that forest does not become reserved forest until notification under Section 20 of the Forest Act is issued. Then again in Gala Ho Vs. Emperor, AIR 1946 Pat 51, it was held that until the conditions mentioned in Section 20 of the Forest Act is fulfilled, the forest cannot be deemed to be a reserved forest and it is only from date fixed by the notification mentioned in sub-section (1) of that Section that a forest is deemed to be a reserved forest. 9. In view of the observations of two Division Benches of this Court referred to above the area not having been declared as reserved forest under the Forest Act no action can be taken against the petitioner. It was also held in Bhagwan Sahai (supra) that Section 38 does not deprive any owner of any right in property. The Section only enables the owner to make an application to the Collector for the purpose of management of his forest lands or to have applied such lands all the provisions of the Act. The rights of the owner in the property remain and it is the management of the property alone which is requested by him to be done by a Forest Officer. 10. In the case of Vinay Verma vs. Union of India reported in 1993(2) PLJR 263 wherein the license holder under the Mines and Mineral (Regulation and Development) Act was directed to stop mining operation by the Collector who is also Chief Wild Life Warden of that area within the meaning of Wild Life Protection Act the provisions of sub- section (6) of Section 35 would not be attracted unless the concerned area was declared to be a National Park. It was further held that the mining lease cannot be cancelled without giving an opportunity of hearing to the license holder. 11. Due regard being had to the facts and circumstances of the case the prosecution of the petitioner appears to be unwarranted and is required to be quashed. 12. In the result the application so far as the petitioner is concerned succeeds and his prosecution in Case No. 150 C 3 of 2004 is hereby quashed.