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2001 DIGILAW 773 (CAL)

Balaram Bhandari v. State of West Bengal

2001-12-19

AMITAVA LALA

body2001
JUDGMENT Under this writ petition the petitioners have asked basically for the reliefs in the nature of cancellation of the withdrawal of grant of transit pass given by the authority and an order not to disturb the peaceful possession of the plot known as 'Bhandari Bagan' of the petitioners and use of usufructs therefrom and other incidental prayers in connection thereto. 2. According to the petitioners, popularly known plot of land being 'Bhandari Bagan' comprised an area of 19.93 acres of land and situated at Mouza-Belesola J.L. No. 29 Plot No. Old-26 and New-30, Police StationBarjora, District-Bankura. The Khcltian Nos. are 180/2, 177/1, 219/1, 219/2, 219/3, 242 and 248 and all arekrishi jami either partially or fully. From the record of right it appears that such lands are partially recorded as Bagan i.e. garden. Therefore, it can be construed either the lands are fully cultivable land or partially cultivable land and partially garden. Therefore, the purpose of utilisation of the land as reflected in the record of right either fully for agriculture or partially for agriculture and horticulture. 3. A dispute arise 'in between the petitioners and the State in a Civil Court in the District, Bankura being Suit No. 32 of 1996 whether the land in question IS jungle/forest or bagan/garden when it was declared by such Civil Court that suit property is a garden and the State was permanently restrained by order of injunction from disturbing the petitioners/plaintiffs therein possession in the suit property. Accordingly, the authority granted transit pass to the petitioners for the purpose of making to and fro therein. It is also pertinent to point out that the concerned Block Land and Land Reforms Officer duly communicated the Forest Range Officer that the plots of land are not vested to the State. However, as the Forest Officer once prohibited from granting transit pass a writ jurisdiction was invoked under W.P. No. 9852(W) of 1997, (1) Bhabani Charan Bhandari & Ors. v. The State of West Bengal & Ors. when authorised Range Officer was directed to consider the matter of granting transit permission in accordance with law within the prescribed time therein and such writ petition was disposed of. The petitioners representative placed all the necessary papers before the authority concerned including the decree of the Civil Court. v. The State of West Bengal & Ors. when authorised Range Officer was directed to consider the matter of granting transit permission in accordance with law within the prescribed time therein and such writ petition was disposed of. The petitioners representative placed all the necessary papers before the authority concerned including the decree of the Civil Court. In spite of the same, under the order impugned, the concerned Range Officer of the Barzora Range refused to issue transit pass to the petitioners. 4. According to him, the land in question mentioned in Bhandari Bagan having Plot No. 26, Mouza Belesole JL No. 29. P.S. Barzora has been declared as forest vide notification in Calcutta Gazette No. 2820 dated 15th February, 1996. This notification is taken as conclusive proof of ownership of the land and all recordings made by DLLRO/BLLRO in Divisional settlement contrary to above notifications stands automatically void. Therefore, the concerned land is property of the Forest Department and all trees standing on the said plots are the properties of Government of West Bengal. Surprisingly, under the order impugned there is no whisper about an order of the Court from which no appeal was stated to be preferred. Therefore, the order impugned appears to be outcome of sheer non-application of mind. 5. Learned Counsel appearing for the State contended that Forest Department was not the party to the suit. Therefore, decree of the Civil Court is not binding upon them. I am not in the domain of considering the issue. However, in deciding the question of requisition, the necessary contesting parties by whom the property is requisitioned or acquisitioned and against whom such requisition or acquisition has been made. Who will be the ultimate beneficiary by acquiring it that cannot be the question in such civil dispute. Therefore, whether the Forest Department was party or not party to such dispute, as alleged herein, cannot be a good ground of defence to stand against the right of the petitioner who had already been established his right against requisition or acquisition in a Civil Court. If Forest Department of the State was at all aggrieved they could have taken the matter to the acquiring or requiring authority of such State long before. At this belated stage, they cannot ignore the decree of a Civil Court merely because the erstwhile Writ Bench of the High Court directed to consider the matter. If Forest Department of the State was at all aggrieved they could have taken the matter to the acquiring or requiring authority of such State long before. At this belated stage, they cannot ignore the decree of a Civil Court merely because the erstwhile Writ Bench of the High Court directed to consider the matter. Right has already been accrued in favour of the petitioners which cannot be disturbed in any manner whatsoever on the part of the purported beneficiary. The Civil Court has thoroughly examined the matter and it has been observed that the mere existence of low thorny bushes in the garden does not turn it into a jungle. In a jungle wild trees and other vegetations are to be ordinarily found. The jungle is also located at some distance from the suit land. There is rows which are not denied. The fruit trees cannot naturally grow in rows and location of the trees in rows also discharge the story taken by the defendant (State of West Bengal) that the gardens naturally form in a jungle (forest). 6. According to the petitioner, records of right were made long after passing of such decree from which no appeal was preferred. It is further available to the record that even in December, 1994 the Block Land and Land Reforms Officer intimated that the lands are not vested to the State. Even thereafter, such type of order de hors the decree of the Civil Court as well as intimation of the acquiring and requiring the recording of the State is absolutely baseless. The authority concerned under the impugned order totally given an go bye the incident took place in respect of the property in question after the initial requisition or acquisition, if any, published in the Calcutta Gazette on 15th February, 1956 and proceeded contrary to the stand by the Divisional Settlement Officers under the Land and Land Reforms Act without having such authority. From the language of the order impugned it appears as if the authority is not only sitting over appeal on the order of the concerned Officer of Divisional Settlement attached to the office of the Land and Land Reforms Office but also the decree of the Civil Court. Therefore, such order, in any manner, cannot be sustainable as alleged or at all. 7. Therefore, such order, in any manner, cannot be sustainable as alleged or at all. 7. According to the respondent, this plot of land was treated as acquired under certificate of possession of Forest under West Bengal Acquisition Act, 1953 with effect from 30th December, 1955. Notification was published on 17th May, 1956. According to further to the respondent that even in Calcutta Gazette dated 2nd September, 1976 the said plot of land was also shown as forest land. It appears from the notification that in exercise of power conferred by Clauses (a) and (b) sub-section (1) of Section 4 of the Indian Forest Act, 1927, the Governor was pleased to declare status of the land as reserve forest since such land was vested to the State under the West Bengal State Acquisition Act, 1953 and declared as protected forest in the Calcutta Gazette on 17th May, 1956 along with others. It also appears that• in 1979 Chief Conservator of Forest, West Bengal a Divisional Forest Officer was informed that ,in a Notification under Section 20 of the Indian Forest Act, 1927 the land has been declared as forest• land and a notification will be published in Calcutta Gazettee in due course if not already done. It has also been stated that in 1975 the Divisional Forest Officer wanted to record it under the Notification as a forest land. 8. I am surprised to see that there is no whisper in respect of the verdict of the Court of the year, 1967 nor there is any indication about the intimation of the Block Land and Land Reforms Officer in 1994 i.e. requiring and acquiring authority that the plot in question is not vested to the State. Therefore, in what way the land can be described as a forest land is unknown to this Court. 9. Even the law in respect of the forest land has been substantially changed even-after 1956. Therefore, a query in connection thereto should have been there. Action of the Forest Department is totally reckless and de hors the law. 10. Therefore, in what way the land can be described as a forest land is unknown to this Court. 9. Even the law in respect of the forest land has been substantially changed even-after 1956. Therefore, a query in connection thereto should have been there. Action of the Forest Department is totally reckless and de hors the law. 10. In (2) AI R 1996 Calcutta 389, M/s. Burn and Company v. The State of W.B. broadly it was held that the notification under Section 4 of the West Bengal Estate Acquisition Act published in 1954 and 1956 could not apply to forest land which was included in 5(i)(aa) of the Act by the Amending Act (XIIV) of 1957. In any event it must be viewed that the disputed land belonging to the petitioner could not and did not vest in the State under the West Bengal Estates Acquisition Act. According to the petitioner, Section 5(i)(aa) was inserted by the West Bengal Acquisition (Second Amendment) Act, 1957 and being so it is clear that no fresh notice was ,issued under such sub-section which was required for the forest lands. 11. In (3) 81 CWN 361, Sub-divisional Land Reforms Officer & Ors. v. Ukhara Forest & Fisheries Ltd. it was held by another Division Bench that the word 'forest' appearing in Section 5(1)(a)(ii) and the definition of 'forest' in Section 2(ff) of the West Bengal Estates Acquisition Act, 1953 were omitted with retrospective effect by the West Bengal Estate Acquisition Second Amendment Act, 1957. By the said Second Amendment sub-section 2(ff) was added to Section 5(1) which included 'forest' lands in any estate which would vest in the State. It was held that absence of fresh notification issued under Section 4, after insertion of the amended portion of the Act, forest land did not vest in the State and notifications which were issued in 1954 and 1956 would not apply. Notices purported to have been issued under Section 10(2) of the said Act was invoked and must be quashed. By this judgment a previous Bench decision reported in AIR 1980 Cal 61 , Sub-divisional Land Reforms Officer & Ors. v. Ukhara Forest Fisheries Ltd. was overruled. 12. Therefore, if the existence of notification of 1956 is not applicable in accordance with law the impugned order based on such notification in 1956 cannot be sustainable. By this judgment a previous Bench decision reported in AIR 1980 Cal 61 , Sub-divisional Land Reforms Officer & Ors. v. Ukhara Forest Fisheries Ltd. was overruled. 12. Therefore, if the existence of notification of 1956 is not applicable in accordance with law the impugned order based on such notification in 1956 cannot be sustainable. The respondent wanted to develop the case by saying that even in 1976 it was declared as forest land by one notification. There I have to say that neither the impugned order proceeded on such basis nor the existing notification is outcome of an independent proceedings, subsequent to such amendment. It appears that the same date of notification being 17th May, 1956 was incorporated for the purpose of declaration as forest. Thereby I am also surprised that even at the time of issuance of such notification judgment of the Civil Court was not considered. Moreover, there is a huge communication gap between the Land Reforms Department and Forest Department of the State. In 1994 when the State is saying that the land is not vested then the Forest Authority is holding a view that the land is a forest land in the year, 1998 under the impugned order. Therefore, again it appears that such decision cannot be held to be good and is outcome of non-application of mind. Section 4(1)(a)(b) of the Indian Forest Act, 1927 read with Section 20 cannot have any leg to stand. In the instant case, the original acquisition is not only under challenge but also established by the Division Bench that the same is not justifiable so far as the forest land is concerned. In such circumstances, Forest Act cannot have any independent force to apply. 13. Learned Counsel appearing for the State contended that special leave petition has been moved to the Supreme Court of India from the judgment reported in 81 CWN 361 (supra), so the Court should adjourn the hearing. However, adjournments on such ground was granted on numerous occassions to accommodate the respondents but all are in vain. 13. Learned Counsel appearing for the State contended that special leave petition has been moved to the Supreme Court of India from the judgment reported in 81 CWN 361 (supra), so the Court should adjourn the hearing. However, adjournments on such ground was granted on numerous occassions to accommodate the respondents but all are in vain. Ultimately, by way of a supplementary affidavit the State Authority wasted to develop the case by saying that a communication of the Divisional Forest Officer was sent to the Chief Conservator of the Forest with a copy to the State Authority so that a request can be made to the Court to keep the matter pending until and unless Supreme Court matter is disposed of. I am sorry to say that even after granting so much of time on the self-same cause and after last hearing of the matter being held on 26th April, 2001 no communication has been made to this Court. Therefore, this Court cannot take the matter reluctantly. Since, there is no order of stay there cannot be any embargo in proceeding with the matter and accordingly proceeded therewith. The other part of the supplementary affidavit has been dealt with. Therefore, there is no necessity to repeat the same to avoid the prolixity. 14. Thus, the writ petition stands disposed of. The order impugned stands quashed. Rule, if any, made absolute. Interim order, if any, stands firm. However, no order is passed as to costs. Let an urgent xeroxed certified copy of this judgment if applied for, be given to the learned Advocates for the parties within 2 weeks from the date of putting the requisites.