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1996 DIGILAW 288 (PAT)

Hari Nath Mahto v. State of Bihar

1996-04-24

B.P.SINGH

body1996
Judgment B.P. Singh, J. In the instant writ application the petitioner has prayed for issuance of a writ of mandamus or any other appropriate writ order or direction calling upon the respondents and their servants agents and employees not to take any step for plantation of forest over 15.50 acres of lands which are portions of Plot Nos. 3542 find 3543 of Khata No. 78, under khewat No. 1 of village Kanrtari. 2. The case of the petitioner is that the aforesaid lands do not form part of the "protected forest" declared under the provisions of the Indian Forest Act, 1927 (hereinafter referred to as "the Act") and that the action of the respondents who wish to plant trees in the said plots is illegal, unauthorised and in breach of the rights enjoyed by the petitioner as the raiyat of the said lands. The further case of the petitioner is that the aforesaid land belonged to the ex-intermediary, namely Maharaja of Ramgarh. In the year 1933 Ramgarh Estate was under the Court of Wards when a Hukumnama was executed in favour of the predecessor-in interest of the petitioner granting raiyati interest in respect of 1.00 acre of land out of plot no. 3542 and 14.50 acres out of plot no. 3543. Ramgarh estate vested in the State of Bihar under the Bihar Land Reforms Act, 1950, and thereafter the petitioner became a raiyat under the State of Bihar. In the year 1953 by issuance of a notification Annexure-A dated 2.1.1953 the Government of Bihar in exercise of powers conferred by section 29 of the Indian Forest Act, 1927 declared the provision of Chapter IV of the laid Act, applicable from the date of this notification to the forest lands and waste lands specified in the Schedule. It was further declared that the forest land comprised in that notification shall be called "Protected Forest" The plots in question are mentioned in the schedule to the said notification. It was further declared that the forest land comprised in that notification shall be called "Protected Forest" The plots in question are mentioned in the schedule to the said notification. Thereafter on 6.9.1957 a notification under section 30 of the Act, was issued, which is Annexure-B to the counter affidavit and according to the counter affidavit, and according to the said notification certain species of trees were declared reserved and certain acts in relation to those lands were prohibited by the notification, such as breaking of stone and their removal storage produce or manufacture of goods or removal of forest product, clearing of forest, for its cultivation or for purpose of animal husbandary or any other purpose. 3. The case of the petitioner is that after i9suanre of the notification, Annexure-B, he filed a claim before the Forest Settlement Officer under the Bihar Private Forests Act, 1947 and the Rules 1960 claiming that he had raiyati interest over the plots in question and that the same should not have been declared to be protected forest. This claim of the petitioner had been filed some time in the year 1966, but the same was disposed of by order dated 30.10.1968 Annexure-1. The Forest Settlement Officer held an enquiry and found that since the lands were under Cultivating possession of the petitioner, they should be released from protected forest. The Forest Department came in appeal, which was dismissed by the Additional Collector by order dated 3.7.1991 Annexure 3. The matter rested there as no further appeal was preferred. The petitioner therefore, claims that the land in question stood released, and therefore, did not form part of the protected forest. However, in the year 1988 the respondents started plantation work over the lands in question, which compelled the petitioner to approach this Court for appropriate reliefs. 4. The Divisional Forest Officer has filed a counter affidavit stating that the orders Annexres-1 and 3 passed by the Forest Settlement Officer and the Additional Collector are wholly without jurisdiction. In any event pursuant to those orders the notifications Annexures-A and B were never amended and the lands were not actually released as claimed by the petitioner. The lands continued to form part of the protected forest as declared under the notification Annexure-B issued under section 30 of the Act. 5. In any event pursuant to those orders the notifications Annexures-A and B were never amended and the lands were not actually released as claimed by the petitioner. The lands continued to form part of the protected forest as declared under the notification Annexure-B issued under section 30 of the Act. 5. The moot question which arises for consideration is as to whether the forest Settlement Officer had any authority whatsoever to pass the order Annexure-1, which was up-held in appeal by the Additional Collector. It is difficult to comprehend how the petitioner could move the Forest Settlement Officer under the provision of the Bihar Private Forests Act, 1947, when the notifications were issued under sections 29 and 30 of the Indian Forest Act, 1927 declaring the lands as constituting a "protected forest". There was no notification under the Bihar Private Forests Act, 1947, and hence no proceeding could be initiated under that Act. The Forest Settlement Officer did not, therefore, have any jurisdiction under the Act, and his order suffers from inherent lack of jurisdiction. 6. So far as the provisions of the Indian Forest Act, 1927 are concerned, Chapter-IV of the Act, deals with the "protected forest". Chapter-II of the Act, deals with the "reserved forest". In the instant case I am only concerned with the provisions relating to protected forest, because Power has been exercised by the Governor and notifications issued under sections 29 and 30 of the Act. There is nothing in Chapter-IV or under any other part of the Act, which authorises the Forest Settlement Officer to release any land, which forms part of the "protected forest by virtue of a notification issued under section 29 of the Act. 7. Counsel for the petitioner, however, relied upon section 11 of the Act, which comes under Chapter II and which confers power on the Forest Settlement officer to admit or reject a claim made by a person in respect of the land, which is subject matter of notification under section 4 of the Act, that a notification is issued by the Governor declaring its intention to constitute the notified land a reserved forest. That effects only an intention and not the final decision in the matter and. therefore, the Forest Settlement Officer has been vested with certain powers under sections 7 to 13 to make an enquiry and pass necessary orders. That effects only an intention and not the final decision in the matter and. therefore, the Forest Settlement Officer has been vested with certain powers under sections 7 to 13 to make an enquiry and pass necessary orders. After the enquiry is made a final notification is issued under section 20 of the Act. The power which the Forest Settlement Officer exercised under 11 is a power in relation to the notified lands under section 4 of the Act, declaring the intention of the Government to constitute such lands as reserved forest. The forest Settlement Officer obviously cannot exercise such power in respect of land which forms part of "protected forest" and which is subject matter of notification under section 29 of the Act. 8. It is therefore clear that the orders Annexures-1 and 3 are wholly unwarranted in law and have been passed by the Authorities which had no jurisdiction whatsoever in the matter. Their orders can neither be justified under the provisions of the Bihar Private Forests Act, 1947, nor under the provisions of the Indian Forest Act, 1927, which is the relevant Act. In any event the notifications Annexures-A and B were never amended pursuant to the aforesaid orders and, therefore, the lands in question continued to form part of the "protected forest". There is, therefore no merit in the contention of the learned counsel for the petitioner that the lands in question do not form part of the “protected forest". Accordingly, this writ application must be rejected as devoid of merit and is thus, rejected. 9. Before parting with this judgment I may notice the provisions of section 30 of the Indian Forest Act, 1927 which provide that declaration made under section 30 of the Act, shall be for a period not exceeding 30 years. Counsel for the petitioner points out that the notification in the instant case under section 29 of the Act, was issued in the year 1957 and published in the year 1964 and maximum period therefore has run out. I am not expressing any opinion on this aspect of the matter, but I leave it open to the petitioner to agitate his claim before the appropriate Authority.