Jharkhand High Court
Jay Prakash Singh vs The State Of Jharkhand .... Opposite ... on 31 January, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 1646 of 2016
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1.Jay Prakash Singh
2.Uchit Mahto
3.Ramlal Oraon @ Bir Bhagat .... Petitioners
-- Versus --
The State of Jharkhand .... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. Abhay Kumar Chaturvedi, Advocate
For the State :- Mrs.Ruby Pandey, Advocate
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7/31.01.2024 Heard Mr. Abhay Kumar Chaturvedi, the learned counsel
appearing on behalf of the petitioners and Mrs. Ruby Pandey, the learned
counsel appearing on behalf of the respondent State.
2. This petition is filed for quashing of the entire criminal
proceeding including the order taking cognizance dated 28.03.2014 in
connection with U.C. Case No.234 of 2013, pending in the court of learned
Chief Judicial Magistrate, Chatra.
3. On the basis of the written report, the offence has been
registered alleging therein that the accused persons illegally cut the small
trees and bushes in reserve forest and they are illegally erecting boundary
wall for Kashturba Gandhi Residential Girls School and photographs of the
spot was also taken and also the information was given to the senior officials.
It is stated that the accused persons have violated provisions of section 26 of
the Indian Forest Act and section 27 and 29 of Wild Life (Protection) Act and
section 2 (iv) of Forest (Conservation) Act, 1980.
4. Mr. Chaturvedi, the learned counsel appearing on behalf of
the petitioners submits that the petitioner no.1 is contractor of the school
building and petitioner nos.2 and 3 are the employees. He submits that the
contract was provided to M/s Pooja Enterprises for construction of the
building of Kashturba Gandhi Girls School at Lawalong Block and for this, the
work order was also given to start the work. The total value of construction
work was Rs.3,10,58,431/- of Sarv Shiksha Abhiyan. He submits that the
Deputy Commissioner, Chatra addressed the letter to District Superintendent
of Education cum District Programme Officer, Jharkhand Education
Programme, Chatra providing no objection by the district administration for
transfer of land of Jharkhand Government for construction of Kashturba
Gandhi Residential Girls School. He submits that plot number in the offence
report is 373 and the Deputy Commissioner by letter contained in running
page no.18 has informed that plot was gair majurwa land. He submits that
the building has been constructed and in view of that it was also
inaugurated. He submits that on this background no case is made out
against the petitioners.
5. Learned counsel for the respondent State submits that the
said land is forest land and in view of that forest department has also wrote
to the Deputy Commissioner, Chatra for stopping the construction work. She
submits that the said construction is unauthorized.
6. It is an admitted position that the subject matter of the
prosecution report as well as the letter of the Deputy Commissioner is plot
no.373. In the letter of Deputy Commissioner, it has been disclosed that the
said plot is gair majurwa land meaning thereby it was a government land and
by the said letter, the Deputy Commissioner has given clearance for
construction of the building of Kashturba Gandhi Residential Girls School. The
work order contained in Annexure-2 is there which clearly suggest that the
work was allotted to M/s Pooja Enterprises. Further in the counter affidavit it
has not been disclosed that the land has been notified in the Gazette. In light
of section 29 and 30 of the Indian Forest Act, any notification with regard to
forest land remained in force for 30 years only. Reference may be made to
the case of Ram Narayan Rai @ R.N. Rai @ R.N. Roy & Ors. Versus
State of Jharkhand & Anr., reported in 2015 (4) JBCJ 475 (HC). Para-6
and 7 of the said judgment is quoted hereinbelow:-
"6. Having heard learned counsels for both the sides and
upon going through the record, I find that from the
prosecution report or from the counter affidavit, it is not
at all apparent that whether the notification dated
26.8.1955 was issued under Section 29 of the Indian
Forest Act or under Section 30 of the Indian Forest Act. If
there is no notification under Section 30 of the Indian
Forest Act, no offence can be said to be committed under
Section 33 of the said Act. If the said notification was
issued under Section 30 of the Act, it certainly had lost its
life on the expiry of the period of 30 years. There is
nothing either in the prosecution report or in the counter
affidavit to show that fresh notification was issued or the
said notification was revived by the State Government
declaring the forest to be the protected forest. The law is
well settled in this regard by catena of decisions of this
Court, such as, Jagdish Mehta Vs. State of Jharkhand &
Ors., reported in 2003 (2) JCR 525 (Jhr), Anup Kumar Vs.
State of Jharkhand, reported in 2012 (2) East Cr C 21 (Jhr),
Daso Ram & Ors., Vs. State of Jharkhand, reported in 2013
(1) East Cr C 247 (Jhr), wherein it has been held that upon
expiry of notification issued under Section 30 of the Indian
Forest Act, the land in question cannot be termed to be a
protected forest, consequently no offence can be said to
be made out under Section 33 of the Indian Forest Act. I
also find force in the submission of the learned counsel for
the petitioners that Section 2 of the Forest (Conservation)
Act is not a penal provision and accordingly, the order
taking cognizance under Section 2 of the Forest
(Conservation) Act clearly shows complete non-
application of the judicial mind.
7. For the aforementioned reasons, I find that the
impugned order taking cognizance against the petitioners
cannot be sustained in the eyes of law. Accordingly, the
impugned order dated 30.11.2004 passed by the learned
SubDivisional Judicial Magistrate, Madhupur at Deoghar,
in GOCR Case No.61 of 2004, as also the entire criminal
proceeding against the petitioners in the said case, are
hereby, quashed. This application is accordingly, allowed.
7. Further what was done it was on the instruction of the
government and the construction of the school building was going on and
if such a government order is being executed by the petitioners and the
said work was going on pursuant to the work order granted by the
Government with permission of the Deputy Commissioner, and in view of
that, no liability can be fastened upon the petitioners as it was on the
direction of the Government.
8. In view above, entire criminal proceeding including the
order taking cognizance dated 28.03.2014 in connection with U.C. Case
No.234 of 2013, pending in the court of learned Chief Judicial Magistrate,
Chatra are quashed.
9. This petition is allowed and disposed of.
10. Pending petition if any also stands disposed of accordingly.
( Sanjay Kumar Dwivedi, J.)
SI/,
