State Of Uttarakhand ... vs U.P. Rajkiya Nirman Nigam Ltd. ...
2021 Latest Caselaw 997 UK

        HIGH COURT OF UTTARAKHAND AT NAINITAL

                          First Appeal No. 33 of 2006

State of Uttarakhand                          .....Defendant /Appellant.
                                        Versus
U.P. Rajkiya Nirman Nigam Ltd.                  .... Claimant / respondent.

Present :
Mr. I.P. Kohli, Standing Counsel for the State of Uttarakhand/Appellant.
Mr. Anil Kumar Joshi, Advocate for the respondent.

                                                        Dated: 18th March, 2021
                                 JUDGEMENT

Hon'ble Sharad Kumar Sharma, J.

This First Appeal has been preferred by the defendant/appellant, being aggrieved against the judgment and decree dated 17th March, 2004, which was rendered by the Court of Additional District Judge, F.T.C. Tehri Garhwal, in Civil Suit No. 57 of 2002, U.P. Rajkiya Nirman Nigam Ltd. Vs. Divisional Forest Officer. By virtue of the Suit, in question, the challenge, which has been given by the plaintiff / respondent, herein, was to the notices, which was issued under Section 61-A of the Indian Forest Act.

2. By instituting the Suit, in fact, the nature of decree, which was sought for was by way of declaration, qua the notice issued, as to be void and also for the purposes of grant of a decree of permanent injunction.

3. This First Appeal was admitted on 3rd April, 2006, and lower court's record was summoned. On scrutiny of the LCR, if the plaint averments are taken into consideration, the Suit, in question, is shown to have been instituted on 10th December, 2002, wherein, the plaintiff /respondent, herein, had sought a decree in the following nature :-

"v& fd LFkkbZ fu'ks/kkKk A izfroknh ds f[kykQ bl vej dh tkjh fd;k tkos fd og [kqn vFkok vius v/khuLr fdlh vf/kdkjh deZpkjh] Bsdsnkj]

etnwj ;k vU; fdlh ,stsUV ls vkjf{kr cu ¼lkjtwyk½ dEikVZ ua 07] 043 gSDVj ls oknh ds vLFkkbZ Vhu "ksMks dk;kZy;ks vkoklh; Hkouks dks mlds }kjk tkjh uksfVl fn- 12-11-2002 ds vUrxZr ;k vU; izdkj csn[ky djus ls ckt jgsA c& fd oknh dk lkjk [kpkZ liFkdrkZ dks izfroknh ls fnyk;k tkosA l& fd vU; dksbZ izfrdj tks U;k; ds gd esa mfpr gks oknh dks izfroknh ds f[kykQ fn;k tkosaA"

4. The institution of the Suit would be reflected from the date of the swearing clause of the Suit, which is shown to be 10.12.2002.

5. There are various rival and factual contentions in the pleadings, which have already been exchanged between the parties before the Court below.

6. But, at this stage, when the Appeal was being argued, the learned counsel for the appellant had requested for formulation of point of determination by invoking the provisions contained under Order 41 Rule 31 of the CPC to the following effects :-

i. Whether the Suit instituted on 10th December, 2002, by the plaintiff/respondent, for the declaration of the notice under Section 61-A of the Forest Act, as to be void and whether the grant of decree for injunction, would fall to be permissible under Section 9 of the CPC ? ii. Whether the amendment carried by the State of Uttarakhand; to the provisions contained under Section 61-A of the Forest Act, being prior in time, i.e. prior to the institution of suit since having been notified with the assent of the Government of India dated 17.07.2002, in the official gazette, and later on notified on 11th August, 2002, would cover the field and the petitioner's remedy

would be restricted by the Central legislation, as provided by the Amending Act No. 10 of 2002 ?

7. The insertion which was made by the Uttaranchal Act No. 10 of 2002, under Section 61-A, reads as under :-

"61A. Summary eviction of persons convicted of certain offences.--(1) Where a Court convicts any person of an offence under clause (a) , clause (d) or clause (h) of sub-section (1) of section 26 or clause (c) or clause (h) of sub-section (1) of section 33, it may, when passing judgment direct the eviction of such person from any land in respect of which the offence has been committed.

(2) Any Court of appeal of revision may direct any order under sub-section (1) passed by a Court subordinate thereto to be stayed pending consideration by the former Court, and may modify, alter or annul such order. [Vide Uttar Pradesh Act 23 of 1965, sec. 14."

8. Its enforcement by Act No. 10 of 2002, as per the opinion of the Court, and also in consonance to the provisions contained under Section 3 of the Amending Act, the enforceability of the Amending Act, of insertion of the provisions contained under Section 61-A, would be with effect from the date of the gazette notification, which in the instant case, as per the provisions contained under Article 200 of the Constitution of India, the assent of the President was obtained on 17.07.2002, and later on, the Amending Act was notified in the gazette notification on 1st August, 2002. The relevant part of the gazette notification is extracted hereunder :-

"ljdkjh xtV] mRrjkapy &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& mRrjkapy ljdkj }kjk izdkf"kr &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& vlk/kkj.k &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& fo/kk;h ifjf"k.V Hkkx&1] [k.M ¼d½ ¼mRrjkapy vf/kfu;e½

&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& nsgjknwu] c`gLifrokj] 01 vxLr] 2002 bZ0 Jko.k 10] 1924 "kd lEor~ &&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&&& mRrjkapy "kklu fo/kk;h ,oa lalnh; dk;Z foHkkx la[;k [email protected]/kk;h ,oa lalnh; dk;[email protected] nsgjkwnu] 01 vxLr] 2002 vf/klwpuk fofo/k "Hkkjr ds lafo/kku" ds vuqPNsn 200 ds v/khu egkefge jk"Vªifr us mRrjkapy fo/kku lHkk }kjk ikfjr mRrjkapy Hkkjrh; ou ¼mRrjkapy la"kks/ku½ fo/ks;d] 2001 dks fnukad 17&7&2002 dks vuqefr iznku dh vkSj og mRrjkapy vf/kfu;e la[;k 10] lu~ 2002 ds :i es loZ&lk/kkj.k dh lwpukFkZ bl vf/klwpuk }kjk izdkf"kr fd;k tkrk gSA Hkkjrh; ou ¼mRrjkapy la"kks/ku½ fo/ks;d] 2001 ¼vf/kfu;e la0 10 o'kZ 2002½ Hkkjrh; ou vf/kfu;e] 1927 dk mRrjkapy esa mldh izo`fRr ds lEcU/k esa la"kks/ku djus ds fy;sA"

9. In view of the aforesaid circumstances, when the Amending Act, amending Section 61-A of the Forest Act, by way of insertion, was notified and enforced w.e.f. 1st August, 2002, and since the Act itself being a Central legislation and self contained Act, it provided a procedure itself under Section 61-A, the Court is of the view that the provisions of Section 9 of the CPC; would not be applicable and available to the appellant for seeking a declaration of notice under Section 61-A of the Forest Act, to be void when specific platform, itself has been provided under Sub-section (2) of Section 61-A of the Act, as has been inserted by the Act No. 10 of 2002 and it is not only that any decision which is rendered by the Forest Officer on the reply to the show cause notice which is contemplated under Sub-section (2) of Section 61-A, is applicable to the State of Uttarakhand. The plaintiff/respondent, has been provided with the statutory remedy of appeal before the Conservator of Forest, under Sub-section (4) of Section 61-A of the Forest Act.

10. Hence, in view of the above fact, I am of the opinion that Central legislation itself is a self contained provision, providing for the redressal of the grievance of the plaintiff/respondent, under Section 61-A itself, I am of the view that the Suit, which was instituted, being a Suit which was for decree, which was declaratory in nature and for the grant of a decree of permanent injunction, would be barred by the provisions of the Forest Act, as contained under Section 61-A, which was notified to be made applicable w.e.f. 1st August, 2002. Hence, the subsequent Suit would not be maintainable.

11. Accordingly, the point of determination as framed above, is answered against the plaintiff/respondent and the judgment impugned, which is under challenge, since the Suit itself was not maintainable before the Civil Court, to adjudicate upon the propriety of the notice under Section 61-A, would not be maintainable.

12. Hence, the First Appeal is allowed. The judgment and decree, which is being put to challenge i.e. dated 17th March, 2004, is hereby quashed. However, dismissal of the Suit would be without prejudice to the rights, as available to the plaintiff / respondent, as per the provisions contained under Section 61-A of the Indian Forest Act, as applicable to the State of Uttarakhand.

(Sharad Kumar Sharma, J.) 18.03.2021 Shiv