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2019 DIGILAW 274 (SC)

State Of Uttarakhand v. Dinesh Randhawa

2019-01-22

R.BANUMATHI, R.SUBHASH REDDY

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ORDER 1. Leave granted. This appeal arises out of the order dated 21.03.2016 passed by the High Court of Uttarakhand at Nainital in Special Appeal No. 66 of 2015 in and by which the Division Bench held that the order of the learned Single Judge is not appealable in view of Article 227(1) of the Constitution of India. 2. The facts are not in dispute. Erstwhile State of U.P. issued notification under Section 20 of the Indian Forest Act 1927 (20.09.1965) declaring the area - Sultan Nagari mentioned in Schedule A of the above notification to be reserved forest area. Since the respondent-Dinesh Randhawa has constructed Pucca House/Wall over the Sultan Nagari reserved forest land, a notice dated 06.11.2006 was issued to the respondent to remove the construction materials as well as the encroachment from the forest land immediately. The respondent challenged the above notice dated 06.11.2006 in W.P. No. 1491/M.B./2006 before the High Court. The said writ petition was subsequently dismissed as withdrawn by the respondent vide order dated 26.06.2007. 3. Again on 07.11.2007, a notice was issued to the respondent for eviction. Challenging the said notice dated 07.11.2007, the respondent again filed Writ Petition No. 2532 of 2007 seeking direction for quashing the ejectment notice. The said writ petition was dismissed in limine directing the respondent to file objection before the prescribed Authority concerned. The respondent appeared before the Divisional Forest officer, Haldwani, Forest Division and after recording of the evidence of both the parties and upon perusal of evidence and materials, the Divisional Forest Officer passed the order on 08.08.2008 and directed ejectment of the respondent from the reserved forest land. The respondent filed Misc. Case Appeal No. 26/2008-09 before the Conservator of Forest, West Zone, Uttarakhand, challenging the order of the Divisional Forest Officer and the Conservator of Forest dismissed the appeal on 03.11.2008. 4. Being aggrieved, the respondent again filed Writ Petition No. 90/2009 for quashing the order passed by the DFO and the Appellate Authority. Learned Single Judge allowed the writ petition of the respondent and quashed the order passed by the DFO as well as the Appellate Authority and observed that the mandatory notice under Sub Section (1) of Section 61A was not served on the appellant and directed issuance of the fresh notice under Sub section (1) of Section 61A. Learned Single Judge allowed the writ petition of the respondent and quashed the order passed by the DFO as well as the Appellate Authority and observed that the mandatory notice under Sub Section (1) of Section 61A was not served on the appellant and directed issuance of the fresh notice under Sub section (1) of Section 61A. The appeal preferred by the State before the Division Bench came to be dismissed as aforesaid. 5. We have heard Mr. Ashutosh Kumar Sharma, learned counsel appearing on behalf of the appellants as well as Ms. Shashi Kiran, learned counsel appearing on behalf of the respondent and perused the materials on record. 6. Even in the earlier round of litigation, the respondent has admitted receipt of notice issued under sub Section (1) of Section 61A. Likewise in Writ Petition No.90/2009 also, the respondent has admitted issuance of notice dated 07.11.2007 and the entire proceedings of the Divisional Forest Officer and the Appellate Authority emanated from notice dated 07.11.2007. While so, learned Single Judge was not right in observing that the notice under sub section (1) of Section 61 was not served upon the respondent. 7. Be that as it may, learned counsel appearing on behalf of the respondent has submitted that the house of the respondent is situated only in Rajendra Nagar Colony which does not fall within the reserved forest area. In this regard, learned counsel for the respondent has also drawn our attention to various house tax receipts and other documents. 8. Learned counsel appearing on behalf of the State of Uttarakhand has submitted that these documents were considered by the Divisional Forest Officer and rejected the contention of the appellants. Learned counsel for the State reiterated the stand of the State that the respondent is an encroacher. Learned counsel for the State has also submitted that the appellant has obtained clarification from the Municipality stating that the house tax receipts would not confer the title. The notice was issued way back in the year 2007. In view of the passage of time, we set aside the impugned order and remit the matter back to the Divisional Forest Officer, Haldwani, Forest Division. The respondent-herein shall file his representation within four weeks from today before the Divisional Forest Officer along with the documents relied upon by him. The notice was issued way back in the year 2007. In view of the passage of time, we set aside the impugned order and remit the matter back to the Divisional Forest Officer, Haldwani, Forest Division. The respondent-herein shall file his representation within four weeks from today before the Divisional Forest Officer along with the documents relied upon by him. The Divisional Forest Officer shall consider the matter afresh without reference to the earlier orders passed by the Authority and the orders passed by the High Court. We make it clear that no fresh notice of eviction in terms of Section 61A (1) of the Act need be served to the respondent. 9. The Divisional Forest Officer shall afford sufficient opportunity to both the parties and dispose of the same within a period of three months from the date of filing of the representation by the respondent. We make it clear that we have not expressed any opinion on the merits of the case. 10. The appeal is, accordingly, disposed of in above terms.