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2023 DIGILAW 368 (UTT)

Nilabh Mishra v. Prescribed Authority/Assistant Conservator Forest/Assistant Director, Rajaji Tiger Reserve

2023-06-15

RAKESH THAPLIYAL, VIPIN SANGHI

body2023
JUDGMENT : Vipin Sanghi, J. The present Special Appeals are directed against similar orders passed by the learned Single Judge in the Writ Petitions preferred by the respective appellants. The appellant in Special Appeal No. 215 of 2023 – Nilabh Mishra had preferred Writ Petition (M/S) No. 735 of 2023, whereas the appellant in Special Appeal No. 216 of 2023 – Yogesh Arora had preferred Writ Petition (M/S) No. 719 of 2023. 2. By the impugned orders, the learned Single Judge dismissed the Writ Petitions preferred by the appellants, wherein they had assailed the eviction orders passed by the Prescribed Authority/Deputy Director, Rajaji Tiger Reserve, under Section 34A of the Wild Life (Protection) Act, 1972. 3. The appellants claim that they were tenants of the Mansa Devi Trust, in shops situated within the Mansa Devi Temple at Haridwar, where they were selling articles used by the pilgrims visiting the said Temple. They claimed that the said shops had been in existence since 1970, and were let out by the Mansa Devi Trust to the appellant in SPA No. 215 of 2023 – Nilabh Mishra in the year 2003, and to the appellant in SPA No. 216 of 2023 – Yogesh Arora in the year 1970. 4. The appellants, amongst others, totaling 11 persons/entities, were issued notice by the Wild Life Warden, Haridwar, Rajaji Tiger Reserve on 18.02.2020, stating that, apart from the complex of Mansa Devi Temple on land admeasuring 0.4 acres, outside the complex of the Mansa Devi Temple in the reserved forest, there are unauthorized permanent shops existing, in respect whereof, complaint had been received. It was stated that the said unauthorized construction of the shops was in breach of the Wild Life (Protection) Act, 1972. The said list contained the names of the shops occupied by the appellants at Serial Nos. 2 and 4, i.e. Yogesh Arora and Nilabh Mishra. The said communication also mentioned that, upon enquiry, it was learnt that the Mansa Devi Trust was not charging any rent from the said shops for many years. Once again, it was enquired, whether the Trust was charging any rent, and if so, on what basis. 5. The Mansa Devi Trust responded to the said communication. The said communication also mentioned that, upon enquiry, it was learnt that the Mansa Devi Trust was not charging any rent from the said shops for many years. Once again, it was enquired, whether the Trust was charging any rent, and if so, on what basis. 5. The Mansa Devi Trust responded to the said communication. Pertinently, the Trust did not dispute the factual narration in the said communication, and also did not claim that the land beyond the area of 0.4 acres - which fell outside the complex of the Temple, belonged to the Mansa Devi Trust. In fact, the stand taken by the Mansa Devi Trust was that no rent was being collected from the said 11 shops. The Trust also claimed that, vide letter dated 13.08.2019, the Trust had requested the Survey of India to demarcate the boundary of the Temple complex. 6. Both the petitioners were issued similar notices by the Prescribed Authority. The notice issued to the appellant – Nilabh Mishra has been tendered in Court, which is dated 07.06.2022. Mr. Arvind Vashistha states that an identical notice was issued to the other appellant – Yogesh Arora. These notices gave the particulars of the land, whereon encroachment was alleged, which fell in the Rajaji National Park. In the notice issued to the appellant – Nilabh Mishra, the description of the land reads as ek;kiqj iwohZ Cykd ØŒlaŒ2 es 0-00016 gS^^ , whereas in the notice issued to the appellant – Yogesh Arora, the said description reads as ek;kiqj iwohZ Cykd ØŒlaŒ2 es 0-001914 gS . 7. The appellants filed their respective responses to the said notices issued to them, which have been set out in verbatim in the orders of eviction passed by the Prescribed Authority. From the reply of the appellants, it is clear that they do not dispute the fact that the land in question falls within the Rajaji Tiger Reserve, and; that the land in question falls in ek;kiqj iwohZ Cykd ØŒlaŒ2 gS . It was claimed by the appellants that they were the tenants in the said shops of the Mansa Devi Trust. The appellants heavily relied upon the fact that the criminal proceedings initiated against them had been stayed by the High Court and, therefore, they contended that the Prescribed Authority could not proceed in the matter against them. It was claimed by the appellants that they were the tenants in the said shops of the Mansa Devi Trust. The appellants heavily relied upon the fact that the criminal proceedings initiated against them had been stayed by the High Court and, therefore, they contended that the Prescribed Authority could not proceed in the matter against them. The Prescribed Authority rejected the aforesaid submission of the appellants, and proceeded to pass the eviction order against the appellants, in respect of the shops occupied by them. 8. The learned Single Judge dismissed the Writ Petitions preferred by the appellants, by observing that Section 34A of the Wild Life (Protection) Act, 1972 empowers the Forest Officer, now below the rank of an Assistant Conservator of Forests, to order eviction of any person from a sanctuary or National Park, and also to remove any unauthorized structures, buildings, or constructions erected on any Government land within any sanctuary or National Park. The learned Single Judge further observed that no material had been brought on record to show that the shops in question are not within the limits of the National Park. Merely because the appellants claim that they were paying rent to the Mansa Devi Trust, would not entitle them to continue in possession of the shop inside the National Park. The Mansa Devi Trust had never asserted its title over the land in question, therefore, the claim of the appellants, who claim to be tenants, could not be higher than that of the alleged landlord. 9. The first submission of Mr. Arvind Vashistha, learned Senior Counsel for the appellants, is that, apart from Section 34A of the Wild Life (Protection) Act, 1972, there is a provision under Section 61B of the Indian Forest Act, 1927, as applicable to the State of Uttarakhand, for summary eviction of unauthorized occupants from Forest area. He submits that the person, allegedly, in unauthorized occupation of forest land has a further statutory right of appeal under the Indian Forest Act, and there is no such similar provision in the Wild Life (Protection) Act. He, therefore, submits that the proceedings under the Wild Life (Protection) Act could not have been maintained, and the proceedings should have been undertaken under the Indian Forest Act, 1927. 10. We do not find any merit in this submission of Mr. Vashistha. He, therefore, submits that the proceedings under the Wild Life (Protection) Act could not have been maintained, and the proceedings should have been undertaken under the Indian Forest Act, 1927. 10. We do not find any merit in this submission of Mr. Vashistha. Section 34A was inserted in the Wild Life (Protection) Act, 1972 by Act 16 of 2003, w.e.f. 01.04.2003. The said provision begins with a non-obstante clause, and states “Notwithstanding anything contained in any other law for the time being in force, any officer not below the rank of an Assistant Conservator of Forests may …………”. Therefore, notwithstanding the provisions contained in the Indian Forest Act, 1927, proceedings for removal of unauthorized encroachment could be undertaken by the Assistant Conservator of Forests. Section 34A of the Wild Life (Protection) Act, 1972 is available only in respect of unauthorized occupation/encroachment in a sanctuary or National Park, whereas the provision contained in the Indian Forest Act, 1927 has much large scope. Since Section 34A is a special provision, and by its very language it overrides other provisions of law, which would include the provisions of the Indian Forest Act, 1927, we do not find any merit in the submission of Mr. Vashistha that proceedings under Section 34A could not have been initiated against the appellants. 11. The further submission of Mr. Vashistha is that it was for the respondent-authorities to establish that the land, over which the appellants’ tenanted shops were situated, fell within the boundary of the Rajaji Tiger Reserve. 12. The eviction order impugned in the Writ Petition sets out the stand taken by the two appellants in their respective replies. Nowhere, in their reply, they have disputed the stand of the respondents that the land, on which their tenanted shops were situated, is not falling in the Rajaji Tiger Reserve, or not falling in ek;kiqj iwohZ Cykd ØŒlaŒ2 . They also do not question the area mentioned in the notices issued to them. It was really for the appellants to plead and prove that the land, over which the shops were located, fell outside the boundary of the Rajaji Tiger Reserve. They, however, failed to do so. Pertinently, the appellants only claim tenancy rights in the said shops by claiming that they are the tenants of the Mansa Devi Trust. It was really for the appellants to plead and prove that the land, over which the shops were located, fell outside the boundary of the Rajaji Tiger Reserve. They, however, failed to do so. Pertinently, the appellants only claim tenancy rights in the said shops by claiming that they are the tenants of the Mansa Devi Trust. However, even the Mansa Devi Trust never asserted their right, title or interest over the land, on which the said 11 shops were constructed. The said Trust also disowned the tenancy claimed by the appellants. We have already taken note of the response of the Mansa Devi Trust, to the notice issued by the Wild Life Warden, Haridwar, Rajaji Tiger Reserve dated 18.02.2020. 13. For the aforesaid reasons, we do not find any merit in these Special Appeals, and, in our view, the impugned orders do not call for interference. 14. The Special Appeals are, accordingly, dismissed. 15. Since we have examined the Special Appeals on merit, we have not gone into the aspect of delay. 16. Consequently, pending application(s), if any, also stand disposed of accordingly.