SHRI DIGAMBAR JAIN ATISHAY Vs. STUDY CIRCLE SOCIETY

JUDGEMENT

(1.) The challenge in the present writ petition is to an order dated 27.5.2016, passed by the National Green Tribunal, Central Zonal Bench, Bhopal ( for short "the Tribunal") whereby, on an application filed by the intervenor, the present respondent No.2, an order was passed to maintain status-quo with regard to the land in question and the District Collector and the Divisional Forest Official of Damoh District was directed to ensure that no trees are allowed to be cut and no construction contrary to the provision of the Forest Conservation Act , 1980 is allowed to be carried out. The order read as under :

(2.) The case has a chequered history. Initially the Archaeological Survey of India invoked the jurisdiction of this Court bearing W.P. No.1220/2006 (Archaeological Survey of India vs. State of M.P. and others) relying upon the notification dated 16.7.1913 u/s 3(1) of the Ancient Monuments Preservation Act , 1904 and the notification dated 30.11.1914 affirming notification dated 16.7.1913. The Archaeological Survey of India sought quashing of the order dated 5.4.1999 whereby a decision has been taken to hand over 158.65 acres of land in village Kundalpur; 34.35 acres of land in village Fatehpur and 6.54 acres of land in village Tirgarh to the present petitioner. The challenge in the writ petition was that in view of the said notifications, no construction or mining activity can take place additionally in view of the notification dated 16.6.1992 issued under Rule 32 of the Ancient Monuments Archaeological Sites & Remains Rules, 1959, around 'Bade Baba Temple' same being protected forest. The petitioner sought immediate action against the present petitioner for cutting down the trees from the site in question. Mohd. Azam filed writ petition - W.P. No.4159/2006 in public interest to the same effect. A contention was raised that the construction is being raised on the protected forest which is not legally permissible. It was also argued that initially land admeasuring 221.87 acres of land was proposed to be notified under Section 4 of the Indian Forest Act, 1927 but ultimately notification was published on 4.3.1974 under Section 20 of the Indian Forest Act only for land measuring 63.25 acres and that land measuring 158.62 acres was not declared as protected forest. In fact 158.62 acres of land which was not declared as protected was situated in village Kundalpur, but, also the land measuring 34.35 acres situated in village Fatehpur and 6.45 acres situated in village Tirgarh were also excluded from being protected forest vide communication dated 5.4.1999, subject matter of challenge in the said writ petition. Respondent No.2 herein filed an intervention application - I.A. No.1743/2006 on 6.3.2006. Both the writ petitions were dismissed on 17.09.2012, wherein it has been held as under :

(3.) The Chief Commissioner, Central Provinces has issued a notification u/s 3(1) on 16.7.1913 of the Ancient Monuments Preservation Act , 1904 in respect of Kundalpur to be protected ancient monument. Subsequently, vide notification dated 20.11.1914, the Chief Commissioner affirmed the notification dated 16.7.2013. Thereafter on 2.5.1967, a notification was issued intending to declare the land situated in many villages as protected forest. However, the 39017.87 acres of land in different villages was notified to be protected forest vide notification dated 4.3.1974 published in the official Gazette on 31.5.1974 including 63.25 acres of land in village Kundalpur, 201.90 acres of land in village Fatehpur and 424.53 acres of land in village Tirgarh. But vide order dated 5.4.1999 the land measuring 158.62 acres in village Kundalpur was left in favour of Jain Trust for tree plantation and pilgrimage. Similarly vide aforesaid order, 34.35 acres of land in village Fatehpur and 6.45 acres of land in village Tirgarh were left in favour of Jain Trust for tree plantation and pilgrimage. (Notifications dated 26.7.1913, 28.11.1914 and notification dated 4.3.1974 published on 31.3.1974 are on record of W.P. No.1220/2006 decided on 17.9.2012 in a writ petition filed by Archaeological Survey of India).