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2023 DIGILAW 888 (MP)

DEVBRAT SINGH v. VAN MANDALADHIKARI, SATNA

2023-11-02

SUJOY PAUL

body2023
ORDER : 1. This petition filed under Article 227 of the Constitution takes exception to the order dated 22-7-2023 (Annexure P-25) whereby the Misc. Civil Appeal filed by the petitioners/plaintiffs against rejection of their application under Order 39, Rule 1 and 2, Civil Procedure Code by order dated 24-6-2023 is dismissed by the Court below. 2. The petitioners/plaintiffs filed the suit for permanent injunction which was registered as Civil Suit No. 29A/2023. Along with the said application, plaintiffs filed an application under Order 39, Rule 1 and 2, Civil Procedure Code seeking injunction. The other side entered appearance upon receiving notices and filed reply. The Court by order dated 24-6-2023 (Annexure P-24) rejected the said application. 3. Aggrieved, the plaintiffs filed Misc. Civil Appeal under Order 43, Rule 1 and 2, Civil Procedure Code which was registered as MCA No. 64/2023. The department entered appearance and after hearing both the parties, by the impugned order dated 22-7-2023 the appellate Court dismissed the MCA and affirmed the order dated 24-6-2023. 4. Shri A.K. Jain, learned counsel for the petitioner submits that ‘Mauka Panchnama’ (Annexure P-18) shows that the land in question was outside the boundaries of forest land. For the same purpose, he placed reliance on the order-sheet of Sub Divisional Officer (SDO) dated 29-6-2007 whereby he directed the Tehsildar Majhgawan to submit an enquiry report. In turn, orders dated 17-7-2007 and 19-7-2007 were passed. In the order dated 19-7-2007, the learned SDO recorded that the land in the question falls within the four corners/ map of forest land. It is further recorded that for taking decision regarding forest land a Forest Settlement Officer has been specifically appointed. Thus, learned Sub Divisional Officer, Majhgawan, Tehsil Raghurajnagar sent the matter for further consideration to Forest Settlement Officer, Satna. In turn, Forest Settlement Officer by order dated 5-1-2008 recorded a finding that the land of Khasra No. 309/02 and 309/04 were found to be outside the forest land. 5. The sheet anchor of argument of Shri A.K. Jain, learned counsel for the petitioners is that the aforesaid order sheets dated 29-6-2007, 17-7-2007 and 19-7-2007 were on record which formed basis for passing of said order dated 5-1-2008. In addition, the ‘Mauka Panchnama’ (Annexure P-18) was on record. The trial Court has miserably failed to consider these relevant documents and there is no iota of discussion on these documents. In addition, the ‘Mauka Panchnama’ (Annexure P-18) was on record. The trial Court has miserably failed to consider these relevant documents and there is no iota of discussion on these documents. When these documents were brought to the notice of learned appellate Court, the appellate Court has recorded an erroneous finding in this regard. The attention of this Court is drawn on para-24 of the impugned order dated 22-7-2023 passed by the appellate Court wherein a mention is made in relation to previous orders of Sub Divisional Officer which became reason for passing of the order dated 5-1-2008. 6. Shri A.K. Jain, learned counsel for the petitioner further submits that if findings given in Para-27 of the impugned order dated 22-7-2023 are examined, it will be clear that the Court below has committed an error in giving a finding that it is not clear as to in relation to which case, the order dated 5-1-2008 was passed. Thus, relevant documents available on record has escaped notice of the Court and Court below has recorded an erroneous finding. 7. Sounding a contra note, Shri Piyush Jain, learned Government Advocate supported the impugned orders. He submits that the notification under section 4 of Indian Forest Act, 1927 was issued way back on 12-1-1968. The lands in question fall within the four corners of forest land. The department filed an affidavit of Dhirendra Singh, Dy. R.F.O. before the Appellate Court to demonstrate that the proceedings on the strength of which the order dated 5-1-2008 was recorded, was conducted in a very hasty manner and not in accordance with law. In this view of the matter, no fault can be found in the impugned orders passed by the Court below. 8. No other point is pressed by learned counsel for the parties. 9. I have heard learned counsel for the parties at length and perused the record. 10. The arguments show that the parties are at logger heads and have taken diametrically opposite stand on the location/situation of the land. The stand of the plaintiffs is that their land is situated outside the forest area and, therefore, any notification will not adversely affect their possession whereas the department has taken a stand that the land in question is very much within the periphery of forest land. 11. The stand of the plaintiffs is that their land is situated outside the forest area and, therefore, any notification will not adversely affect their possession whereas the department has taken a stand that the land in question is very much within the periphery of forest land. 11. The trial Court has neither considered the ‘Mauka Panchanama’ nor the aforesaid order-sheets including the order-sheet dated 5-1-2008 prepared by the Forest Settlement Officer. 12. The Appellate Court in Para-24 of the impugned order dated 22-7-2023 although recorded a finding regarding previous order-sheets dated 17-7-2002 and 5-1-2008, surprisingly, in para-27 gave a finding that it is not clear as to on what basis, the order-sheet dated 5-1-2008 was prepared. In the para-27 the learned Appellate Court while giving finding about order sheet dated 5-1-2008 has failed to take note of order sheets dated 17-7-2007 and 19-7-2007. Court needs to examine these order sheets to ascertain about the background of order dated 5-1-2008. Curiously, the Appellate Court has not considered the affidavit of the department dated 18-7-2023 and stand of deponent Dhirendra Singh Baghel, Dy. R.F.O. 13. The scope of interference under Article 227 of the Constitution is limited. The interference can be made if order suffers from manifest procedural impropriety or palpable illegality or perversity [See: Shalini Shyam Shetty and another vs. Rajendra Shankar Patil, (2010) 8 SCC 329 ]. In the instant case, there exits a serious procedural impropriety and perversity because the relevant order sheets mentioned hereinabove were very much on record. Yet Court below in para-27 opined that the basis of order dated 5-1-2008 is not clear. This finding is clearly perverse and runs contrary to record. Similarly, the stand of the department taken in the said affidavit has not been considered. Thus, material documents have escaped notice of both the Courts below. Thus, both the orders have become vulnerable. Resultantly, both the orders impugned herein dated 24-6-2023 and 22-7-2023 are set aside. The application under Order 39, Rule 1 and 2 of Civil Procedure Code is restored in the file of Civil Suit No. 29-A/23. The Court below shall hear the parties afresh and pass a fresh order in accordance with law. 14. The petition is disposed of. It is made clear that this Court has not expressed any opinion on the merits of the case.