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2012 DIGILAW 1269 (JHR)

Central Coalfields Ltd. v. State of Jharkhand

2012-08-29

APARESH KUMAR SINGH

body2012
ORDER By the Court.-Heard learned counsel for the parties. 2. This Writ petition was preferred for quashing the order dated 22nd March. 2007. issued by the Certificate Officer, Dhanbad Mining Circle. Dhanbad under Section 9 of the Jharkhand and Orissa Public Demand Recovery Act, 1914, raising a demand of Rs. 90, 73, 052.00 failing which his account should be attached. 3. The controversy raised in the writ petition can be cut short in view of the categorical statements made in the counter affidavit that against a demand of Rs. 9, 61, 03, 273.00 comprising the certificate amount as well as the interest the petitioner-company has paid an amount of Rs. 8,70,30,221.00 vide demand draft dated 21st February, 2007. It is further stated that against the balance dues of certificate of Rs. 90,73,052.00 the petitioner was given a chart which they have verified and according to the petitioner an amount of Rs. 89.54.807.85.00 is correct as per the photocopy of the calculation chart submitted by the petitioner-company vide Reference No. PO/GVP/Royalty/3128, dated 30th July, 2007 (Annexure-C) to the counter-affidavit. However, in view of the pendency of the writ application the said amount has not been paid. 4. Be that as it may since over the outstanding demand of Rs. 90,73,052.00 the petitioner has also submitted a chart of Rs.89,54,807,85.00. the matter can be looked into by the Certificate Officer where the petitioner is allowed to approach for the aforesaid purpose. Accordingly, the writ petition is disposed of by directing the petitioner to approach the Certificate Officer, respondent No.3. who shall consider the same and raise the demand after fixation of the amount after hearing both the parties. 5. Accordingly, the writ petitioner is allowed to approach the Certificate Officer-respondent No.3 in view of the statement recorded hereinabove as also their own letter dated 30th July. 2007 (Annexure-C) to the counter-affidavit. 6. The petitioner's case is that a proceeding under Section 133. Cr PC was initiated on the complaint of a private person. Shanti Devi, who has also now been added as a respondent pursuant to an Interlocutory Application (IA No. 10 of 2009) preferred by her. It is submitted on behalf of the counsel for the petitioner that after passing of the order in the Miscellaneous Case No.1 of 1999 by the Sub Divisional Officer. Koderma (Annexure-3) dated 30th October, 2001. the newly added respondent No. 4 preferred writ petition. It is submitted on behalf of the counsel for the petitioner that after passing of the order in the Miscellaneous Case No.1 of 1999 by the Sub Divisional Officer. Koderma (Annexure-3) dated 30th October, 2001. the newly added respondent No. 4 preferred writ petition. which was converted into Public Interest Litigation by permission of the Court being WP (PIL) No. 2027 of 2002, in which the present petitioner Was the private respondent No. 5. It is further submitted by the learned counsel for the petitioner that the impugned notices directing for demolishing the construction of the house of petitioner has been issued without compliance of the provision of the Bihar and Orissa Municipal Act. 1952. specific Sections 196 and 198. Learned counsel for the petitioner also submits that in a contempt petition pursued by the private respondent the official respondent appeared as opposite party and filed a show cause stating that the encroachment made by the present petitioner was removed and thereafter the contempt proceeding was disposed off. 7. However, learned counsel for the Koderma Municipality submits that while disposing of the said contempt petition the Division Bench of this Court directed it to take appropriate action to remove the unauthorized construction in pursuance of the order passed by the SDM. Koderma, by referring to the order dated 8.11.2006 passed in Contempt (Cv.) Case No. 132 of 2007. It is also contended on behalf of the learned counsel for the respondents-Municipality as well as learned counsel for the newly added respondent that the Sub Divisional Officer had proceeded in respect of encroachment over public land and also unauthorized construction made by the petitioner in absence of a sanctioned plan by the Municipality by directing the Municipality to take appropriate action. It is further submitted by referring to the order passed in WP(PIL) No. 2027 of 2002 as contained at Annexure-4 that the same issue was also raised before this Court in WP (PIL) by the present petitioner, as would appear from the order itself and after taking into account the contention of the said private respondent i.e. petitioner herein a specific order as contained in the last paragraph of the order dated 8.11.2006 was passed directing the Municipality to remove the encroachment and demolish the construction made by the respondent No. 5 within the stipulated time and send a compliance report to this Court. 8. 8. It is further submitted by the Koderma Municipality that the impugned notices have only been issued in pursuance of the order passed by the Division Bench of this Court in the said WP (PIL) and the contention of the petitioner are now no longer tenable. The contention of the petitioner was taken into account while passing the order directing the removal of encroachment as well as demolition of the construction. Learned counsel for the private respondent also supports the aforesaid submissions. 9. The reference may be made to the relevant portion of the order dated 8.11.2006. which are quoted herein-below:- “We have heard the counsel for the petitioner, counsel for the .State as well as the counsel for the-5th respondent. The only contention urged by 5th respondent is that the procedure under Section 193 of the Bihar and Orissa Municipal Act. 1952 has not been complied with and that the respondent No.5 has also filed a suit before the Civil. Court for declaration of Easement right.” "So, in view of the stand taken by the Municipality, it would be appropriate to direct the Municipality. Jhumri Tilaiya Municipality. Koderma to take immediate steps to demolish the construction made by the 5th respondent, in pursuance of the order passed by the Sub Divisional Magistrate on 30.10.2001. Therefore, the 4th respondent is directed to remove the encroachment and demolish the construction made by the respondent No. 5 within a period of four week from today and-after, compliance of the order send a compliance report to this Court." 10. After hearing learned counsel for the parties, it is apparent that this very petitioner. who was a party in the earlier proceeding in WP (PIL) No. 2027 of 2002, on the application of the private respondent had raised a specific contention regarding non-compliance of the provisions of Bihar and Orissa Municipal Act. 1952 before issuing order of demolition of the construction. It further appears from the order dated 8.11.2006 (Annexure-4) that after taking into account the contention of the petitioner, who is the private respondent No. 4 herein, the specific directions were passed directing the Koderma Municipality to remove the encroachment and demolish the construction made by the respondent No.5 within stipulated period and send a compliance report to this Court. It further appears from the order dated 8.11.2006 (Annexure-4) that after taking into account the contention of the petitioner, who is the private respondent No. 4 herein, the specific directions were passed directing the Koderma Municipality to remove the encroachment and demolish the construction made by the respondent No.5 within stipulated period and send a compliance report to this Court. It appears that part of the order had been complied with when the contempt petition was disposed of by further directing the respondent-Municipality to act in terms of the order passed earlier. It further appears that the impugned notices were issued for non-compliance of the aforesaid order. Thereafter, the writ petitioner has approached this Court raising the same grounds and contentions as were made before the Division Bench of this Court in the said writ petition (PIL). The order/judgment passed by the Division Bench dated 8.11.2006 in the said PIL. has not been subjected to any appeal or review by the petitioner and the order/judgment has attained finality. The grounds raised in the present writ petition are the same as canvassed before the Division. Bench of this Court. The matter having reached finality, it is now no longer open to the petitioner to agitate the same by way of present writ application. It is surprising in spite of the fact that no interim order has been passed in the present writ application the respondents-Municipality has 'not proceeded to act in terms of the order passed by the Division Bench of this Court as referred to supra. 11. In the totality of the aforesaid facts and circumstances therefore, the petitioner has failed to make out any ground for interference in the present writ application and more so as the issue raised herein also has attained finality by virtue of passing of the order/judgment dated 8.11.2006 in WP(PIL) No. 2027 of 2002. 12. In view of the fact and the reasons recorded hereinabove. I do not find any merit in this writ petition. Accordingly, it is dismissed. Petition dismissed.