IN THE HIGH COURT OF JHARKHAND AT RANCHI
WP(C) No. 3362 of 2009
With
WP(C) No. 2515 of 2009
In WP(C) No. 3362 of 2009
1. Rama Shankar Singh @ R.S. Singh.
2. Durga Prasad Banerjee @ D.P. Banerjee.
3. Durgesh Kumar Srivastava @ D.K. Srivastava.
4. Soumya Jyoti Sarkar @ S.J. Sarkar.
5. Pradip Narayan Pathak @ Paramanand Pathak.........Petitioners
Versus
1. The State of Jharkhand.
2. The Collector cum Divisional Forest Officer, Bokaro Forest
Division, Bokaro.
3. The Range Forest Officer, Chas, Bokaro.
4. The Forestor, Chas, Bokaro. ........Respondents
In WP(C) No. 2515 of 2009
1. Electrosteel Integrated Ltd. , through its Managing Director,
Kolkata.
2. Shrish Kumar. ............Petitioners
Versus
1. State of Jharkhand, through Chief Secretary, Project Building,
Ranchi.
2. Secretary, Industries Department, Government of Jharkhand,
Ranchi.
3. Deputy Commissioner, Bokaro.
4. The Divisional Forest Officer, Bokaro Forest Division, Bokaro,
Jharkhand.
5. The Range Officer of Forest, Bhagabandh, Chas, Bokaro.
6. The Forester, Bhagabandh, Chas, Bokaro, Jharkhand.
........Respondents
Coram : THE HON'BLE MR. JUSTICE R.K. MERATHIA
For the Petitioners : Mr. Delip Jerath, Advocate in both cases.
For the State : Mr. Rajesh Shankar, S.C. 1
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C.A.V. On 18.2.2010 Delivered on 29/3/2010
21/29/3/2010
In WP(C) No. 3362 of 2009, petitioners being the
employees of Electro Steel Integrated Ltd. ( the Company for short)
have prayed for quashing the entire proceedings initiated against
them under Bihar Public Land Encroachment Act (BPLE Act for short)
being B.P.L.E. Case No. 2 to 11 of 2009-2010, pending in the court of
Collector cum Divisional Forest Officer, Bokaro Forest Division,
including the orders passed therein restraining them and the
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Company from carrying on non-forestry work in the forest area in
Plot Nos. 1159, 1120 and 1389.
WP(C) No. 2515 of 2009 has been filed by the petitioner
company for restraining the respondents from interfering with the
possession and enjoyment of the lands in question, purchased by the
company, in any manner.
2. As common questions are involved in both the writ
petitions, they were heard together and are being disposed of by this
order.
3. Submissions on behalf of the petitioners are as follows.
(i) That the said proceedings under BPLE Act, being
summary in nature, the disputed questions of right, title, interest and
possession, cannot be decided, specially when the appeal arising out
of suit, preferred by the Forest Department, involving similar
questions, is pending.
That a suit being Title Suit No. 25 of 1996 was instituted
in the Court of Sub Judge-II, Bokaro by the plaintiffs-Haripad Mahto,
Kailashpati Mehta, Sumitra Bala Devi, sons and wife of late
Raghunath Mehta of village Bhagaband against the Chief Secretary,
Government of Bihar; the Secretary, Forest Department, Government
of Bihar; the Deputy Commissioner, Bokaro; the Divisional Forest
Officer, Dhanbad; and the Ranger, Chas Range Forest Department,
Chas, Bokaro; for declaration of permanent occupancy raiyati right
and confirmation of possession etc. of the plaintiffs in the schedule-A
and B lands. Schedule-A consisted of 8.50 acres of land in plot no.
1159, 3.05 acres in plot no. 1389 5.13 acres in plot no. 1321, and
1.00 acre in plot no. 1120, in Bhagaband Mauza.
That the respondents-Forest Department contested the
suit.
The following issues were framed
(i) Is the suit maintainable in the present form ?
(ii) Is there any cause of action for the suit?
( iii) Is the suit barred by the principle of waiver, estoppel and
acquiescence ?
( iv) Is the deed of settlement of the suit land in accordance with
law ?
(v) Is the suit land reclaimed into paddy producing khet by the
plaintiffs?
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(vi) Is the entire area of each suit plot acquired by the Bihar
Forest ?
( vii) Is the plaintiff entitled for the reliefs prayed in the suit?
( viii) Is the plaintiff entitled to any other relief or reliefs.
That issue nos. 4 and 5 were decided in affirmative.
Regarding issue no. 6, it was inter alia held that claims of
the defendants that the suit lands have been declared to be the
protected forests is mere myth and it remains unproved as yet, and
that the claim of the raiyats due to non-enquiry under section 29(3)
of the Indian Forest Act, 1927 has not been extinguished as yet. It
was further held that the plaintiffs are in peaceful uninterrupted
continuous possession of the suit land since 1940-42 when the Bihar
Private Forest Act was not in existence and therefore the plaintiff
acquired indefeasible right much less raiyati right over the lands; by
their continuous possession of 12/30 years; and that the plaintiffs
have become occupancy right of the suit land under the provisions of
CNT Act, who cannot be ejected unless and until a decree of
ejectment is executed as provided under section 22 of the CNT Act.
That against such judgment and decree an appeal being
Title Appeal No. 33 of 2007 was preferred in the court of District
Judge, Bokaro, by the Divisional Forest Officer, Dhanbad, and the
Range Officer, Chas and the same is pending. That the initiation of
the impugned proceedings is illegal, arbitrary and malafide.
Reliance was placed on AIR 1982 SC 1081-Government of
Andhra Pradesh Vs. Thummala Krishna Rao; 2009 (2) AIR Jhar. R 332-
Navchetan Sahkari Grih Nirman Samiti Ltd. Vs. State of Jharkhand;
2009 (1) JLJR 126-Haranganj Grih Nirman Sahyog Samiti Vs. State of
Jharkhand; 2004 (3) JCR 89 (Jhr)-Kamal Kumar Singhania Vs. State of
Jharkhand; 2003 (2) JCR 701 (Jhr)-Manohar Lal Jain Vs. State of
Jhakhand; 2000 (1) PLJR 209-Nagendra Mistry Vs. State of Bihar and
2009 (2) JLJR 393-Bharat Singh Vs. The State of Jharkhand.
(ii) That after the notification dated 24.5.1958 was issued
under section 29 of the Indian Forest Act, 1972, it was necessary to
issue notification after holding enquiry and survey, as contemplated
under section 29 (3) of the Act extinguishing the rights of the persons
concerned, but no such notification was issued and therefore the said
notification dated 24.5.1958 cannot be relied by the respondents for
claiming that the lands in question are forest land and for initiating
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the impugned proceedings. That when the Forest Department could
not produce notification under section 29(3) they are claiming that
the lands have been declared “Private Forest”. That even from the
notification declaring private forest it will appear that the extent of
plots declared as private forest is not mentioned and moreover plot
nos. 1389 and 1321 are not there at all.
That the raiyati-agricultural lands in question were purchased
by the Company under registered sale deeds as there was delay in
acquisition of land through Government. The right, title and interest
of the vendors of the Company and their predecessors did not vest
in the Government and were not extinguished by the process of law.
AIR 1966 SC 1847-State of Bihar Vs. Lt. Col. K.S.R. Swami was relied.
(iii) The entire area in question has been surveyed in the year
1973-74 by Survey of India using the latest techniques and from such
survey map, it will appear that no part of the area, over which the
construction work of the Company is going on, contains forest area or
private protected forest.
(iv) The principles of sustainable development should be
kept in mind. Establishing the Industry and preservation of Forest,
both are important. NEERI (National Environment Engineering
Research Institute), a premier and leading environmental study
Institute of India, after conducting extensive environment study for
radius of 10 Kilometers of plant area, has given approval. The
Industry will earn revenue and will generate lot of direct and indirect
employment. The Company has planned development of a modern
township and has undertaken 1,50,000 trees plantation programme.
4. The submission of the State-respondent are as follows.
(i) That the Company was to establish its integrated steel
plant in Chandankyari Block for which permission was given, but it
has not taken permission to establish it in Bhagaband Village of Chas
Block, from any competent authority, including the Government of
India, Ministry of Environment of Forest under section 2 of Forest
Conservation Act, 1980. That the Company and its employees started
non forestry work over the protected forest of Bhagaband Mauza.
(ii) That the lands in question have been notified and
demarcated as protected forest land under section 29 of the Indian
Forest Act, 1927, vide Notification No. C/F-17014/58-1429- R dated
24.5.1958. Forest Settlement Officer was appointed who after
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verifying and considering all the relevant documents produced before
him, from all the raiyat interested, passed necessary order/enquiry
report demarcating different plots as protected forest. A detailed
cadastral map was prepared on that basis, in which different plots of
Bhagaband Mauza have been demarcated. The areas of demarcated
plots are 51.34 acre in plot no. 1120, 51.62 acres in plot no. 1159,
21.64 acre in plot no. 1389, and 8.78 acre in plot no. 1321. On the
said cadastral map, all the three concerned officials i.e. Forest
Settlement Officer, Divisional Forest Officer and Superintendence of
Surveyors put their signatures. Annexures-B and C to the counter
affidavit of WPS No. 3362 of 2009 were referred.
That thereafter, notification under section 30 of the
Indian Forest Act has been promulgated, and thus all the provisions
under section 29 for declaring the area as notified demarcated forest
land has been completed. That in the survey khatiyan, the status and
nature of the lands in question is mentioned as “Gairabad Malik-
Ismal Malik” and “Jangal Jhari”. That the Company did not acquire
right over the plots in question by registered sale deeds.
(iii) In view of 1994 (2) PLJR 731,-Bhuneshwar Pandit Vs. The
State of Bihar, writ court should not enter into disputed questions of
fact.
(iv) Paragraphs 39, 47, 48, 52 (2) and 52(3) of the judgment
reported in (2009) 5 SCC 373- Nature Lovers Movement Vs. State of
Kerala was relied to contend that the Forest Conservation Act, 1980
will apply retrospectively; and that prior approval of Central
Government is necessary for carrying on non-forestry work in forest
area, and that this Act will apply to all forests, irrespective of nature
of ownership or classification thereof. Paragraph 4 of the judgment
reported in (1997) 2 SCC 267 T. N. Godavarman Thirumulkpad Vs.
Union of India & others was also relied.
5. Reply on behalf of the petitioner are as follows.
That the said Annexure-B and C shows that such
proceedings was taken prior to issuance of the Notification dated
24.5.1958, under section 29 of the Indian Forest Act, 1927, and that
the Notification under section 30 is only for reserving trees. Thus
respondents have failed to produce any Notification issued under
section 29(3) of the Act, and therefore, they cannot claim that the
lands in question is protected forest. The respondents also did not
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comply with the order dated 2.12.2009 passed in the WP(C) No. 3362
of 2009. However from the following chart annexed by the
respondents themselves it will appear that part of the lands in
question are involved in the Suit – Appeal.
Mauza Plot Total Area Area Encroach Area Permission
no. area notified decreed ment done recorded granted by
as to by as Jungle Central
projected Vendor petitioner Jhari Government
forest vide T/S Survey of India u/s 2
Khatiyan of Forest
Conservation
Act
1 2 3 4 5 6 7 8
Bhaga 1120 89.16 51.34 1.00 16.23 89.16 Not taken
bandh
1159 99.84 51.62 8.50 51.62 99.84 Not taken
1389 66.98 21.64 3.05 21.64 66.98 Not taken
Total 255.98 124.60 12.55 89.49 255.98
6. From the aforesaid submission of the parties, it will
appear that several disputed questions of facts about right, title and
interest are involved in these writ petitions.
In view of the judgments relied by the parties as noticed above,
such disputed questions can neither be decided in these writ
petitions, nor in the summary proceedings in question under BPLE
Act. Moreover, the appeal-T.A. No. 33 of 2007, arising out of the suit,
involving the said questions between the predecessors in interest of
the petitioner- company and the respondents is pending. However, it
is observed that the said appeal should be disposed of expeditiously.
7. In the result, the BPLE proceedings in question are
quashed, with liberty to the parties to take recourse to and/ or pursue
appropriate proceedings before the competent authority/courts of
law. But status quo as on today shall be maintained, for one month
from today, to enable the parties to obtain orders from competent
authority/court.
However, it is made clear that this order will not prejudice
the respective cases of the parties in other proceedings/suit/appeal
etc.
With these observations, liberty and directions, these writ
petitions are disposed of. However, no costs.
(R. K. Merathia, J)
Rakesh/Ravi/AFR