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2011 DIGILAW 185 (GAU)

Haren Saikia v. State of Assam

2011-03-04

AMITAVA ROY, C.R.SARMA

body2011
JUDGMENT C.R. Sarma, J. 1. The judgment and order, dated 18.09.2009, passed by a Single Bench of this Court, in WP(C) No. 3884/2009, is in challenge in this appeal. 2. We have heard Mr. S. P. Roy, learned Counsel, appearing for the Appellant and Mr. K.N. Choudhury, learned Addl. Advocate General, Government of Assam, appearing for the State-Respondents. 3. The brief facts, that will be required to be noticed for the purpose of consideration of the instant appeal, are set out hereinbelow: In response to a sale notice, dated 25.04.2007, issued by the Divisional Forest Officer (for short 'DFO'), Nagaon Division, for sale/settlement of the 'Mayang Beat Sand Mahal' (hereinafter called 'Mahal') by way of tender, for a period of two years i.e. for 2007-2009, the Appellant participated in the said tender process by depositing required earnest money of Rs. 37,500/- and the 'Mahal' was settled with the Appellant for the said period. Accordingly, the Appellant deposited the first kist money, security money, income tax and sale tax and took possession of the 'Mahal' on 06.12.2007. While making arrangement for extracting materials from the 'Mahal', the Appellant found that some other unauthorised persons were already operating the said 'Mahal', for which a FIR was lodged, on 08.01.2008, with the Officer In-charge of Pragjyotishpur Police Station, Chandrapur, Kamrup (M), for taking necessary action to prevent such unauthorised persons from operating in the said 'Mahal'. According to the Appellant, though the matter was brought to the notice of the Divisional Forest Officer and the concerned forest officials also, they did not take any action for restraining the unauthorised persons from collecting the 'Mahal' materials. Though the Appellant could not operate the 'Mahal', as per the agreement, he deposited the eighth kist money along with taxes. 4. Being aggrieved by the inaction, on the part of the Forest Department, more particularly, the DFO, Nagaon, in stopping the unauthorised persons from operating in the said 'Mahal', the Appellant approached this Court by filing writ petition, being WP(C) No. 639/2008, seeking mandamus for a direction, requiring the Respondent-authorities to take all necessary steps so that the Appellant could extract the 'Mahal' materials and also to re-schedule the payment schedule of kist money as well as the 'Mahal' period. The said writ petition was disposed of on 22.02.2008, directing the Respondent-authorities to examine the grievances of the Appellant and pass necessary orders in accordance with law. The said writ petition was disposed of on 22.02.2008, directing the Respondent-authorities to examine the grievances of the Appellant and pass necessary orders in accordance with law. Thereafter, despite repeated approaches, made by the Appellant, the Respondent-authorities failed to take any action to facilitate the Appellant to operate in the 'Mahal'. Subsequently, a joint inspection was conducted by the Conservator of Forest, Central Assam Circle, Guwahati and the Northern Range Officer and the Beat Officer, Chandrapur (Kamrup East Division), in presence of the Appellant and during the said inspection, it was noticed that one Sri Santosh Newar, a representative of a firm, namely, M/s Young Constructions, was extracting sand from the said 'Mahal' and it was also noticed that, M/s Simplex Infrastructure Pvt. Ltd., on the basis of permission obtained from the DFO, Kamrup East Division, had encroached upon the 'Mahal' of the Appellant Challenging the said encroachment, the Appellant, as Petitioner, preferred another writ petition, being WP(C) No. 5262/2008, and the Court, by order, dated 15.12.2008, passed in the said writ petition, issued interim direction, restraining operation of the said permit, granted in favour of M/s Simplex Infrastructure Pvt. Ltd. 5. According to the Appellant, in spite of submission of complaint and FIR, the concerned Forest Department as well as the police officials, did not take any action to restrain the unauthorised persons from operating in the 'Mahal' of the Appellant, for which the Appellant could not collect any material from the 'Mahal'. Aggrieved by the inaction on the part of the police and the forest authorities, in preventing the unscrupulous persons from extracting 'Mahal' materials, the Appellant, as Petitioner, again approached this Court, by filing another writ petition, being WP(C) No. 1838/2009, seeking direction, requiring the Superintendent of Police, Kamrup and the Officer In-Charge, Pragjyotishpur Rs., to take action in respect of Pragjyotishpur Rs. Case No. 04/2008, under Sections 341/379 IPC, which case was lodged by the Appellant. According to the Appellant, as he could not operate in the 'Mahal' due to the obstruction and interference caused by some authorised persons, he had to return all the unused challan books, issued to him in connection with the said 'Mahal'. 6. Case No. 04/2008, under Sections 341/379 IPC, which case was lodged by the Appellant. According to the Appellant, as he could not operate in the 'Mahal' due to the obstruction and interference caused by some authorised persons, he had to return all the unused challan books, issued to him in connection with the said 'Mahal'. 6. The Chief Conservator of Forests (T), Assam, submitted a proposal, on 05.05.2009 to the Principal Chief Conservator of Forests, Assam, regarding transfer of 'Mayang Beat Sand Mahal' from Nagaon Division to Kamrup East Division, after expiry of the 'Mahal' period, on 11.11.2009. But, the DFO, Nagaon Division, by his letter, dated 18.08.2009, transferred the said 'Mahal' to the Kamrup East Division, before the expiry of the 'Mahal' period and thus violated the direction of the superior officers i.e. the Chief Conservator of Forests as well as the Principal Chief Conservator of Forests. 7. Aggrieved by the said transfer order, dated 18.08.2009, issued by the DFO, Nagaon Division, the Appellant, as writ Petitioner, preferred another writ petition, being WP(C) No. 3884/2009, which has given rise to this appeal, for setting aside and quashing the impugned order, dated 18.08.2009, passed by the DFO, Nagaon Division. The Petitioner in the said writ petition also prayed for a direction to allow him to run the 'Mahal' for the allotted period as well as the non-functional period without any hindrance or obstacle from any quarters. By the impugned judgment and order, dated 18.09.2009, the said writ petition (WP(C) No. 3884/2009) stood dismissed, holding therein that, transfer of the 'Mahal' did not affect the right of the writ Petitioner in running the 'Mahal', as per terms of the agreement. Aggrieved by the said judgment and order, the Appellant has carried the present appeal, on the following grounds: (i) For that the learned Judge did not travel through the annexures and the averments made in the writ petition and passed the impugned order in a most mechanical manner and failed to consider that the Appellant had averred that he did not operate the Mahal for a single day due to illegal activities of the firms/persons as mentioned in the writ petition as such the findings of the learned Single Judge that the Appellant was operating the Mahal are contrary to the records and the findings are perverse. (ii) For that the Appellant had submitted that the CCF(T) Assam and the P.C.C.F. had passed orders for transfer of the said Mahal only after expiry of the lease period of the Appellant and not before that but the DFO, Nagaon vide his letter dtd. 18.08.09 had transferred the Mahal to DFO Kamrup East Division violating the orders of the higher authorities as such the said transfer order is illegal, without jurisdiction and in subordination of the higher authorities as such the same is liable to be quashed. 8. Mr. S.P. Roy, learned Counsel, appearing for the Appellant, has submitted that, though the superior authority had approved the proposal of transfer of the said 'Mahal', after expiry of the 'Mahal' period i.e. after 11.11.2009, the DFO, Nagaon Division, by the impugned letter, dated 18.08.2009, illegally and in collusion with the DFO, Kamrup Division, transferred the 'Mahal' and the relevant files to the DFO, Kamrup East Division before the expiry of the 'Mahal' period and without any knowledge of the Appellant. It is also submitted, that the impugned transfer order aforesaid, issued by the DFO, Nagaon Division, being in contrary to the approval granted by the superior authority, was without jurisdiction, illegal and liable to be quashed. The learned Counsel, has further submitted, that though the Appellant could not operate the 'Mahal', the learned Single Judge, without examining the annexures and the averments made in the writ petition, committed error by observing that the Appellant was operating the 'Mahal'. 9. Per contra, Mr. K.N. Choudhury, learned Addl. Advocate General, taking us through the letter, dated 05.05.2009, issued by the Chief Conservator of Forests (T), Assam i.e. the proposal for transfer of the 'Mahal', has submitted that the authority concerned decided to transfer the 'Mahal' for administrative convenience on the ground that the 'Mahal', which was settled with the Appellant, had fallen in the jurisdiction of Kamrup (Metro) District i.e. within the jurisdiction of the Conservator of Forests, C.A.C., Guwahati. The learned Addl. The learned Addl. Advocate General, referring to paragraph-33 of the affidavit-in-opposition, filed by the DFO, Nagaon Division, has submitted that, though the relevant files, with regard to the concerned 'Mahal', was sent to the office of the DFO, Kamrup, the said 'Mahal' was not physically transferred to the DFO, Kamrup East Division and that the transfer of the 'Mahal' from one Division to another Division, for administrative convenience, did not violate any rights of the Appellant in operating the 'Mahal', allotted to him. With the above submission, the learned Addl. Advocate General, Assam, appearing for the State-Respondents, has contended that the learned Single Judge committed no error by passing the impugned order, dated 18.09.2009, requiring interference by this Court. 10. Admittedly, the 'Mahal' was settled with the Appellant for a period of two years i.e. from 12.11.2007 to 11.11.2009. The Appellant took possession of the said 'Mahal' on 06.12.2007, for carrying out operation and he paid all the kist money, as per agreement aforesaid. According to the Appellant, even after taking possession of the 'Mahal', he could not operate therein due to interference/obstruction caused by some unauthorised persons and inaction on the part of the Forest Department as well as the police officials in removing the said obstructions. 11. As pleaded by the Appellant, due to inaction on the part of the Forest Department as well as the Police Department in removing the obstructions, interference created by some unscrupulous persons in respect of enjoyment of the 'Mahal' by the Appellant, the present Appellant, as writ Petitioner, had filed a writ petition being WP(C) No. 1838/2009, seeking a direction, requiring the Superintendent of Police and the Officer Incharge, Pragjyotishpur P.S. to take necessary action in respect of Pragjyotishpur P.S. Case No. 04/2008, under Sections 341/379 IPC, which was lodged by the Appellant. According to the Appellant, the Superintendent of Police, in the said writ petition, filed an affidavit-in-opposition, stating that the dispute involved was civil in nature and that the said writ petition was pending for disposal. 12. It is admitted position that the Forest Department, for the purpose of administrative convenience, decided to transfer the 'Mahal' to the Kamrup East Division, on the ground that the said 'Mahal' had fallen in the jurisdiction of Kamrup (Metro) District i.e. under the Kamrup East Division. 12. It is admitted position that the Forest Department, for the purpose of administrative convenience, decided to transfer the 'Mahal' to the Kamrup East Division, on the ground that the said 'Mahal' had fallen in the jurisdiction of Kamrup (Metro) District i.e. under the Kamrup East Division. As revealed from the letter, dated 05.05.2009, issued by the Chief Conservator of Forests (T), Assam, a proposal was made for transfer of the 'Mahal' after expiry of the current 'Mahal' period, on 11.11.2009. The Principal Chief Conservator of Forests also, by his letter, dated 11.06.2009, approved the said proposal. As per the said proposal, which was approved by the superior authority, the 'Mahal' was required to be transferred on or after 11.11.2009, on which date the period of the 'Mahal' i.e. the settlement made with the Appellant would have come to an end. By the impugned letter, dated 18.08.2009, the DFO, Nagaon Division, with reference to the said transfer order, had sent the concerned file of the 'Mahal', to the DFO, Kamrup East Division. Now, the principal question is, if by the said transfer of the 'Mahal' the Appellant's right to enjoy the 'Mahal' during the period of settlement was adversely affected. A copy of the said letter, as revealed from the impugned letter, dated 18.08.2009, was also sent to the Appellant. Therefore, it can't be held, that the transfer of the relevant file was made without any information to the Appellant. There is nothing to infer that by the impugned letter, the Appellant's right to operate the 'Mahal' was denied. In their affidavit-in-reply, the answering Respondent i.e. the DFO, Nagaon Division, denying the allegations made by the Appellants, stated that, on receipt of the complaint from the Appellant, a joint inspection was conducted and upon such inspection, no unauthorised occupants were found in the said 'Mahal', allotted in favour of the Appellant. The DFO, Nagaon Division, in his affidavit-in-opposition, clearly stated that there was no encroachment. He further stated, in his affidavit-in-opposition, that the administrative action taken by the Department with regard to transfer of jurisdiction of the 'Mahal' from Nagoan Division to Kamrup East Division, had no relevance with the matter in issue inasmuch as the Appellant had taken possession of the 'Mahal', on 06.12.2007. He further stated, in his affidavit-in-opposition, that the administrative action taken by the Department with regard to transfer of jurisdiction of the 'Mahal' from Nagoan Division to Kamrup East Division, had no relevance with the matter in issue inasmuch as the Appellant had taken possession of the 'Mahal', on 06.12.2007. He also stated that the Appellant, even after depositing the eighth kist money, did not approach the Respondent No. 5 i.e. the DFO, Nagaon Division for issuance of challans, with ulterior motive and that no fundamental right of the Appellant has been violated. 13. The answering Respondent No. 5 i.e. the DFO, Nagoan Division, who had sent the relevant files to the DFO, Kamrup East Division, with regard to the Appellant's allegation regarding transfer of the 'Mahal', before completion of the period of settlement and violation of direction of the superior authority, at paragraph-33 of the affidavit-in-opposition, stated that the 'Mahal' was not physically transferred to the Respondent No. 6 i.e. the DFO, Kamrup East Division and that the Appellant was bound by the agreement executed by him with the Respondent No. 5 i.e. the DFO, Nagaon Division. There is no whisper in the impugned letter, dated 18.08.2009 regarding curtailment of Appellant's right to operate in the 'Mahal'. 14. Carefully perusing the impugned letter and the averment made in the said affidavit-in-opposition, filed by the Respondent No. 5, we find no difficulty in understanding that transfer of the relevant files from Nagaon Division to the Kamrup East Division, by the impugned letter, dated 18.08.2009, had no bearing with the Appellant's right to operate in the 'Mahal'. There is no material on record to show that after the said transfer, the Appellant, despite his approach, if any, was not issued the challans etc. during the 'Mahal' period or that he was not allowed to enjoy the 'Mahal'. 15. In view of the above discussion, we have no hesitation in holding that, by the impugned letter aforesaid, though the relevant files and the papers were sent to the DFO, Kamrup East Division, the Appellant's right to operate the 'Mahal' was not taken away or interfered. Therefore, the transfer of the relevant files did not infringe the Appellant's right of enjoyment of the 'Mahal' during the stipulated period in any manner. 16. Therefore, the transfer of the relevant files did not infringe the Appellant's right of enjoyment of the 'Mahal' during the stipulated period in any manner. 16. Considering entire aspect of the matter, we are of the opinion that, even if the transfer of the relevant files by the DFO, Nagaon Division to the DFO, Kamrup East Division, before completion of the 'Mahal' period i.e. before 11.11.2009, is deemed to be transfer of the 'Mahal' itself, the same, at best, amounted to violation of order of the superior authority. This did not, in any manner, adversely affect the Appellant's right to operate the 'Mahal' as per terms of the agreement. Therefore, we feel inclined to hold that, by the impugned letter, dated 18.08.2009, no fundamental right and principle of natural justice, with regard to the enjoyment of the concerned 'Mahal' by the Appellant, was violated, warranting interference by Writ Court. 17. In view of what has been discussed above, we find no merit in this appeal, requiring interference with the impugned judgment and order, dated 18.09.2009, passed in W.P.(C) No. 3884/2009. Accordingly, the appeal stands dismissed. No costs. Appeal dismissed