IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C ) No. 6052 of 2007
Bharat Singh ........................................Petitioner
Versus
The State of Jharkhand & Anr. ......................Respondents.
CORAM : HON'BLE MR.JUSTICE AJIT KUMAR SINHA
For the Petitioner : Mr. Ramakant Tiwari Advocate
For the Respondents: J.C to S.C. (L & C)
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C.A.V. on : 20.03.2009 Pronounced on : 25.03 .2009
ORDER
05/ 25.03.2009
In the instant writ petition the petitioner prays for issuance of an appropriate
writ for quashing the entire proceeding of B.P.L.E. Case No.02 of 2006 including
notice No.3234 dated 08.08.2007 issued from the office of the respondent No.2 to
the petitioner restraining him from doing any kind of construction over plot No.370,
area 0.52 decimal of Mouza Kamaldih, P.S.Case District Bokaro and the petitioner
also prays for issuance of any other appropriate writ, order or direction for which the
petitioner be found entitled to.
2. The facts, in brief, are set out as under:-
The petitioner purchased plot No.370, area 0.52 decimal of mouza Kamaldih
Chas Bokaro from Khatani Raiyat in his wife’s name Sunita Devi and after the
purchase he is in peaceful possession of the same without any interruption from any
corner including from the side of the respondents and he is also paying rent to the
State after mutation and thereafter he made construction on the plot. In exercise of
the power conferred under Section 29 of the Indian Forest Act the Governor issued
a notification on 9.7.1958 declaring the lands mentioned in schedule as protected
forest. It was subject to the enquiry with regard to the nature and extent of rights
of the Government and private parties. Accordingly a Forest Settlement Officer was
appointed vide notification dated 9.7.1958 to enquire and decide the right, title and
interest of the parties. The land acquisition case No.4-3/60-61 was initiated on
2.8.1963 before the Land Acquisition Officer, Dhanbad in respect of plot No.370,
337/335/20 and 24 area 60-26 and the same was finally dropped. The Forest
Settlement Officer, Dhanbad after making enquiry released the land of plot in
question i.e. plot No.370, Khata No.48 Mouza Kamaldih, Chas, Bokaro vide order
dated 28.11.1964 in Settlement Case No.55/63-64 after hearing the parties. It was
also held that unless the State of Bihar acquires any portion of the land under the
Land Acquisition Act, the said land cannot form part of protected forest. In the
order sheet dated 30.8.1964 after perusal of the document it was held that the land
in question was raiyati land and the petitioners had raiyati rights and the same was
accordingly released and a direction was issued to correct the map and pillars.
2
The notification based upon which this proceeding was initiated against the
petitioner, has already been declared ineffective by the Commissioner, Hazaribagh in
C.N.T. Appeal filed by one similarly situated persons namely Navchetan Sahkari Grih
Nirman Samittee and also by the Charge Officer, Dhanbad in Remand Case
No.16523 of 1992.
The petitioner has further vide supplementary affidavit stated that during
pendency of this writ petition the respondent No.2 has passed an order on
28.03.2008 holding that the land purchased is a Government land and he,
respondent No.2, has snatched the right, title, interest and possession of the
petitioner over plot No.370 of Khata No.98, Kamaldih Chas Bokaro. He has further
directed the petitioner to remove the encroachment within a period of fifteen days
otherwise encroachment will be removed and cost, compensation will be recovered
from the petitioner and the copy of order was served on 01.07.2008, upon the
petitioner. The petitioner has also sought amendment of prayer accordingly
challenging the same.
3. The main contention raised by the petitioner is that respondent No.2 has no
jurisdiction to initiate the proceeding under the Bihar Public Land Encroachment Act
and the power is only vested in the State i.e. Special Divisional Officer and even the
earlier proceeding under the B.P.L.E. Case No.13 of 1984 initiated against the
vendor of the petitioner was directed by S.D.O. to be dropped on 9.10.1984 and an
appeal was preferred challenging the order dated 9.10.1984 vide M.R.A. No.46 of
1984 and the said appeal was dismissed on 11.9.1985 by the Additional Collector,
Dhanbad and the D.F.O. has now filed the second appeal which is pending. It has
also been contended by the learned counsel for the petitioner that once plot No.370
has already been declared raiyati land and was released from acquisition in the year
1964 itself by the Forest Settlement Officer, Dhanbad and the land acquisition
proceeding having been dropped then the respondent No.2 has neither any power
nor authority or jurisdiction to initiate a second land proceeding under the Bihar
Public Land Encroachment Act upon a raiyati land. It has also referred and relied
upon a judgment of the Division Bench passed by this Court in L.P.A. No.528 of
2003 dated 15th December, 2008 which is on similar footing and at paragraph 4 it
has been held as under:-
“At this stage we find no justification as to how the State
authorities can be permitted to issue a show cause notice to the
appellants when the matter is subjudice before the High Court
in Second Appeal in regard to the title, nature and character of
the land, which is alleged to have been encroached by the
appellants. We see no reason as to why the appellants should
have been directed to appear before the Collector-cum-
3
Divisional Forest Officer, Dhanbad Forest Division for which a
show cause notice has been issued to the appellants as that
would amount to allowing a parallel proceeding of eviction of
the land, in question.”
4. The respondents in their counter affidavit themselves at para 9 have admitted
that the Forest Settlement Officer was appointed by the Government to enquire into
and determine the existence nature and extent of any right. It has also admitted as
under:
“It is only the competent Civil Court to decide the right, title and interest of
the parties.”
5. There is no dispute about the fact that the Forest Settlement Officer in its
order passed in Forest Settlement Case No. 55/63-64 decided that Plot No. 370 was
raiyati and in case the Forest Department wanted to get right title over the land they
should acquire the land in a legal manner. The fact remains that the earlier
proceeding against the vendor of the petitioner in B.P.L.E. Case No.13/1984 was
directed to be dropped since neither the title was clear nor the land in question was
public land and even the appeal preferred by the D.F.O. was rejected vide order
dated 11.9.85 and I am informed that a second appeal has been filed which is
pending. In any event the fact remains that the title suit no. 18/1980 has been
preferred by the Forest Department which is pending adjudication.
6. Considering the aforesaid facts and circumstances of the case, unless the
issue of title or ownership or the nature of land is decided, it will be in the interest of
justice to keep the impugned notice and the order under challenge in abeyance.
7. Even otherwise the proceedings under B.P.L.E. Act which was dropped in the
year 1985 itself against the vendors of the petitioner cannot be once again revived
after 22 years on 8.8.2007 and the same is on the face of it illegal and
unsustainable. The fact remains that the second appeal is pending and it is yet to
be declared that the land in question was a forest land or protected forest. Thus a
parallel proceeding B.P.L.E. Case No.20 of 2006 cannot be permitted and the same
should be dropped till the decision of Second appeal and or the title suit.
8. Considering the aforesaid facts and circumstances of the case, this writ
petition is allowed and the notice dated 8.8.07 and the order dated 28.03.2008 are
accordingly quashed.
(Ajit Kumar Sinha,J.)
Jharkhand High Court, Ranchi
Dated : 25.03.2009
NKC /sudhir N.A.F.R.