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2018 DIGILAW 1050 (JHR)

Kalai Tudu v. State Of Jharkhand

2018-05-10

ANUBHA RAWAT CHOUDHARY

body2018
ORDER Anubha Rawat Choudhary, J. - Heard Mr. Satish Baxi, Senior Advocate assisted by Mr. M.A. Khan, Advocate appearing for the petitioner. 2. Heard Mr. Amit Kumar Verma, Advocate appearing for the respondents. 3. This writ petition has been filed for the following reliefs: a) "For quashing of the notification dated 4.1.2013 whereby respondent no. 2 has permitted for seed Plantation in respect of Plot No. 1220 whereas they same has been settled in favour of Petitioner and others raiyats. b) For direction upon the concerned respondents to continue the "Bandobasti" in favour of raiyats and also to issue rent receipts up to date. c) For direction upon the respondents not to act for seed plantation in the settled land of the raiyats in pursuant to the notification dated 4.1.2013." 4. Counsel for the petitioner submits that vide order dated 16.05.1997 the petitioner was settled a portion of land bearing plot no. 1220/33 area 2 acres in Khata No. 41, Thana No. 296, Mouza Badiya, Circle Madhupur in the district of Deoghar. This settlement was done by the Sub-Divisional Officer, Madhupur and prior to the settlement as back as in the year, 1969 a report from the Forest Department was also taken wherein it was certified that this particular property is outside the forest area. He submits that thereafter, the mutation was also done and the petitioner has been paying rent in accordance with law. 5. Counsel for the petitioner further submits that against the order of settlement dated 16.05.1997 an appeal was also filed before the Deputy Commissioner which was ultimately dismissed for non-prosecution vide order dated 04.01.2011 and thereafter the order of settlement has attained finality. He submits that as the petitioner is in possession of the property by virtue of the aforesaid settlement, the right, title and interest arising out of settlement cannot be disturbed by the respondents. 6. Counsel for the petitioner, on instructions, further submits that the petitioner is basically undergoing agricultural operation and is also having small residential house in the property and he is not involved in any non-forest activity which may be said to be detrimental to the wild life, forest and environment. 7. Counsel for the petitioner submits that suddenly the petitioner came across letter no. 7. Counsel for the petitioner submits that suddenly the petitioner came across letter no. 14 dated 04.01.2013 which is said to be a publication in the Forest Department wherein a No Objection Certificate has been given to the Forest Department for the purposes of plantation of trees in plot no. 1220 which includes the portion of the plot no. 1220 settled with the petitioner. 8. Counsel for the petitioner also submits that the respondents have no jurisdiction to enter into the area which has been settled with the petitioner and no jurisdiction to undertake any activity including plantation particularly in view of the fact that the property which has been settled with the petitioner is still continuing in his favour and the action of the respondents amounts to interference with the right of the petitioner from enjoyment of the property which has been settled with the petitioner. He further submits that a number of counter-affidavits have been filed in this case. However, by referring to the counter-affidavit filed on 06.01.2014, the counsel for the petitioner submits that it has been specifically mentioned at para 8 of the affidavit that while doing plantation work no habitation, agricultural field of the petitioner has been disturbed. 9. Counsel for the petitioner reiterates that the impugned communication as contained in Annexure-8 to the writ petition amounts to interference with the legal right of the petitioner from enjoyment of the property which has been settled with the petitioner. 10. Counsel for the respondents, on the other hand submits that the impugned order does not amount to interference with the enjoyment of the property by the petitioner and he submits that as per the judgment passed by Hon''ble Supreme Court in the case of T.N. Godavarman Thirumulpad etc. v. Union of India & Ors., there has been a direction that for the purposes of Forest Conservation Act, the forest was to be understood according to its dictionary meaning and this description covers all statutorily recognised forest whether designated as reserved, protected or otherwise, but also includes any area recorded as forest in the Government record irrespective of the ownership. He submits that extensive directions were issued by Hon''ble Supreme Court to ensure that non-forest activities are not carried out in forest area. 11. He submits that extensive directions were issued by Hon''ble Supreme Court to ensure that non-forest activities are not carried out in forest area. 11. Counsel for the respondents also submits that as specific directions were issued for the purposes of conservation of forest therefore, the impugned letter was issued to ensure plantation in the entire plot no. 1220 which includes the area of the petitioner also. He further submits that in the revenue records this property is recorded as "Jungle Jhari". 12. Counsel for the respondents, however, could not dispute the fact that the property has been settled in favour of the petitioner. 13. The counsel for the respondents also does not dispute the fact that the property settled in favour of the petitioner still continues in his favour. 14. After hearing the counsel for the parties and after considering the facts and circumstances of this case, this Court finds that the property involved in this case has been settled in favour of the petitioner vide order dated 16.05.1997 passed by the Sub-Divisional Officer, Madhupur and was done after taking due permission from the Forest Department. The fact remains that the settlement is still continuing in favour of the petitioner and no steps have been taken for the purposes of cancellation of this settlement. 15. This Court further finds that as the settlement stands in favour of the petitioner, the petitioner cannot be prevented from enjoying the property in terms of the settlement. By the impugned letter no. 2014 dated 04.01.2013, the Deputy Commissioner has permitted plantation of trees in the property which includes the property of the petitioner and this Court is of the considered view that this amounts to interference with the enjoyment of the property which has been settled with the petitioner vide order dated 16.05.1997 passed by the Sub-Divisional Officer, Madhupur. 16. Accordingly, the letter no. 14 dated 04.01.2013 is hereby set-aside only to the extent it relates to the property of the petitioner i.e. referred to in serial no. 26 of the order dated 16.05.1997 which is the order of settlement passed by the Sub-Divisional Officer, Madhupur and the respondents are restrained from interfering with the rights of the petitioner over the property which has been settled in favour of the petitioner. 17. 26 of the order dated 16.05.1997 which is the order of settlement passed by the Sub-Divisional Officer, Madhupur and the respondents are restrained from interfering with the rights of the petitioner over the property which has been settled in favour of the petitioner. 17. However, this order will not prevent the respondents from initiating any proceedings in connection with the settlement, if it is found that the settlement has been done by virtue of any misrepresentation or on account of any factual error committed by the respondents. 18. It is made clear that this writ petition is confined only to the property of the petitioner.