HIGH COURT OF CHHATTISGARH. BILASPUR CQRAM: Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J. Writ ARpeal No. 57 of 2008 Mahadev Lal Agarwal Vs. Govind Lal Agarwal & others ORDER For consideration _>__^-'e_ Hon'bleShri Justice Raieev Gupta '•) J Sd/- Sunil Kumar Sinha Judge Sd/- Chief Justice Post for Order : .1 /04/2009 J__—b^ Sd/- Sunil Kumar Sinha Judge m ^ te'1' ^^y ^" HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon'ble Shri Raieev Gupta. C.J. & Hon'ble Shri Sunil Kumar Sinha. J. APPELLANT Writ Appeal No. 57 of 2008 Mahadev Lal Agarwal, son of Late Nathmal Agarwal, aged about 69 years, resident of BehincfRam Mandir, Shanti Nagar, Raipur (C.G.) RESPONDENTS 1 3. 4. Versus Govind Lal Agarwal, son of Late Nathmal Agarwal, aged about 67 years, resident of Behind Ram Mandir, Shanti Nagar, Raipur (C.G.) State of Chhattisgarh, through the Secretary, Forest Department, Mantralaya, Raipur The Conservator of Forest, Durg Circle, Durg The Divisional Forest Officer, Durg Forest Division, Durg (Writ Appeal under Section 2 Sub-Section (11 ofthe Chhattisaarh High Court (Appeal to Division Bench) Act.2006) Appearance: Mr. B.P. Sharma, counsel for the appellant. Mr. Prafull Bharat, counsel for respondent No.1. Mr. U.N.S. Deo, Govt. Advocate for the State/respondents No. 2, 3 &4. ORDER (1.04.2009) Following order of the Court was delivered by Sunil KumarSinha, J. (1)- Appellant/respondent No.4 in the writ petition has filed this appeal against the order dated 10* of October, 2007 passed by the learned Single Judge of the this Court in Writ Petition (C) No. 2953/2007, whereby, the two orders dated 12.3.2007 (Annexure-P/5) and 15.3.2007 "•-;n-<<: 2 • Writ Anoeal No. 57 of2008 1^8 (Annexure-P/6) passed by respondent No. 3 & 4 herein have been quashed. (2) Appellant and respondent No.1 are real brothers. The matter relates to a Saw Mill established on Khasra No. 451 in Village Than Khamariya, Tehsil Saja, District Durg. Respondent No.l/petitioner daims that the Saw Mill, which was established by his father, was given to him and he obtained license to run the said Saw Mill. The appellant claimed that the said Saw Mill was erected on the land which was allotted to him in the family partition and the mattercame before the Divisional Forest Officer, Durg, who by order dated 13.7.2006 directed the appellant to approach to the competent Court for mutation. Thereafter, the appellant filed a civil suit for declaration and permanent injunction in the Court of First Civil Judge, Class-11, Bemetara which is pending consideration before the said Court. In view of the pendency of the dispute license granted to respondent No.1 was not renewed and by order dated 18.9.2006, the closure of Saw Mill was directed. Against the said order passed by the Divisional Forest Officer, the appellant preferred an appeal before the Conservator of Forest, who by order dated 12.3.2007 (Annexure-P/5 in writ petition) directed the Divisional Forest Officer to mutate the ownership of the Saw Mill on the name of the appellant. and further directed to renew the license for the year 2007. Accordingly, the Divisional Forest Officer passed the order dated 15.3.2007 (Annexure-P/6 in'writ petition) and renewed the license in favour of the appellant. Respondent No.1 filed an objection stating that the filing of civil suit has been concealed by the appellant but that was not considered, therefore, the Writ Petition was filed. "ll. Writ Appeal No. 57 of2008 (3) It appears that after service of the Hamdast-notice on the son of the appellant on 3.10.2007, none appeared on behalf of the appellant on 10.10.2007 and the learned Single Judge, after hearing the counsel for the petitioner and the State respondents allowed the writ petition by quashing the above two orders holding that the State respondents have exercised their power without jurisdiction because the dispute with regard to ownership of land and Saw Mill was pending consideration before the Civil Court. The appellant, thereafter, preferred a Review Petition No. 70/2007 which came up for hearing on 17 of March, 2008. The said petition was dismissed by the learned Single Judge on the said date. Thereafter, this WritAppeal has been filed. (4) Shri B.P. Sharma, learned counsel appearing on behalf of the appellant, argued that the counsel appearing for the respondents/State conceded before the learned Single Judge that the ordeispassed by the Forest Officers i.e. respondents 3 & 4 were admittedly beyond jurisdiction as the matter was subjudice before the Civil Court,and the impugned order was passed. He further submitted that the notice of the writ petition was served on son of the appellant and it was brought to the notice of the appellant very late, therefore, the appellant could not make arrangement for his representation before the learned Single Judge,well in time^and ultimately the order was passed without hearing the contention of the appellant. His submission was that with a view to give complete justice to the partFes, without commenting on the merits of the case at this stage, the matter be remitted to the writ Court for taking a decision afresh after giving due opportunity of hearing to the appellant. [8o Writ Appeal No. 57 of 2008 l^^lg.'ill ,L-...,-.,--^ -..-^, (5) On the other hand, Mr. Prafull Bharat, learned counsel appearing on behalf of respondent No.1 and Mr. U.N.S. Deo, learned Govt. Advocate appearing on behalf of the State/respondents No. 2, 3 & 4, opposed these arguments and supported the orders passed by the writ Court. ^ (6) Firstly, we refuse the contention of Mr. Sharma that the impugned order was a concessional order, i.e. an order on account of submission of the State counsel that the State authorities passed the order beyond jurisdiction. The learned Single Judge has independently held in Para-5 of the impugned order that since a dispute with regard to ownership of the land and Saw Mill was pending before the competent Civil Court, respondent No.3 & 4 were having no authority to overreach the competent court of law and pass order in favour of appellant/plaintiff who himself had gone to the Civil Court for the same relief. Therefore, the orders have been quashed on merits on account ofjurisdictional error. (7) Admittedly, the notice sent to the appellant was not personally served upon him which is clear from the report of the process server. The perusal of the record would show that, in fact, Dasti-notice was served upon the son of the appellant on 3.10.2007 and an affidavit to this effect was submitted before the writ Court. Shri Sharma has argued that on account of these reasons, the appellant could not make arrangement for his representation before the writ Court and the orders were passed in his absence. The matter relates to a dispute regarding family property between two brothers. Therefore, looking to the entire facts and circumstances of the case, and the prayer made by the appellant that :'ys&K ':' •^S^'.-tff^ "•':fy^> •^^E Writ Aoueal No. 57 of2008 whatever order is to be passed that may be passed after hearing the appellant in thg matter, without commenting on the merits, with a view to give complete justice to the parties, we deem it appropriate to remit the matter to the writ Court for passing a fresh order after giving due opportunity of hearing to the appellant. (8) Accordingly, the impugned order is set aside and the matter is remitted to the writ Court with a request to dispose of the same after giving due opportunity of hearing to the appellant. (9) No order as to the cost. Sd/- Chief Justice Sd/- sun"K^arSin^ 'e vatti