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2018 DIGILAW 1225 (JHR)

Izhar Hussain v. State of Jharkhand

2018-06-14

RAJESH SHANKAR

body2018
ORDER : 1. The present writ petition has been filed for quashing the order dated 09.09.2016 passed in Misc. (4h) Case No. 110 of 2016-17 by the court of learned Additional Collector, Bokaro and countersigned by the Deputy Commissioner, Bokaro, whereby long running Jamabandi of the petitioner, being Jamabandi No.1665, appertaining to Khata No. 59, Plot Nos.426 and 450, Thana No. 38, area 103 acres, Mouza Tetulia, District Bokaro, has been cancelled. The petitioner has also prayed for quashing the order contained in memo no.6387 dated 15.12.2016 passed by the Joint Secretary, Department of Revenue, Registration and Land Reforms, Government of Jharkhand, whereby the consent for cancellation of Jamabandi of the petitioner has been given with a direction to take possession of the land. Further prayer has been made for quashing letter No.80/Revenue dated 18.01.2017 issued under the signature of the Deputy Commissioner, Bokaro, whereby the Circle Officer, Chas has been directed to delete the name of the petitioner mentioned in the Register II, at Page 1665 by cancelling the Jamabandi and to take possession of the land. 2. The factual background of the case, as stated in the writ petition, is that the land appertaining to Khata No. 59, Plot Nos.426 and 450, area 103 acres, situated in village - Tetulia, Anchal - Chas, (hereinafter called the said land) was given by Shri Chamtu Singh to Raj Kumar Singh Tikat by way of Jot Patta vide deed no.311 dated 31.12.1893 and the rent was assessed vide Rent Suit No.260 of 1928-29. Thereafter, vide Deed No. 5018 dated 25.11.1933 the said land was surrendered. The Deputy Collector, Purulia vide Certificate Case No.191 of 1933 settled the said land in an auction proceeding in favour of one Samir Mahat @ Samir Mahto (the ancestor of the petitioner) who came in possession of the same. On 26.06.2012, a certificate was issued by the Circle Officer, Chas certifying that the said land was settled in the name of Samir Mahto, the grandfather of the petitioner vide Auction Certificate Case No.191/1933. One Niraj Mohan preferred an application before the Additional Collector, Bokaro for verification of the land of the petitioner, as the same is “Gair Abad Malik”, as per the Khatian, whereas the mutation of the said land has been done and the rent receipts are being issued in favour of the petitioner. On the basis of the said application, a proceeding being Misc. On the basis of the said application, a proceeding being Misc. Case No.56/2015-16 was initiated, wherein the final order was passed on 17.03.2016 after making due enquiry and considering the report of the Halka Karamchari. It has been mentioned in the report that the present raiyats i.e Izhar Hussain and Akhtar Hussain are the recorded raiyats of Register-II in Thoka (Lot) No. 1665 which is absolutely correct and proper and thus the application of Niraj Mohan was held to be baseless and false. Thereafter, a notice dated 30.05.2016 was issued by the Circle Officer, Chas intimating the petitioner to appear on 14.6.2016 to put forth his stand as Jamabandi over the said land was found to be illegal/suspicious. Thereafter, a case was instituted by the Additional Collector, Bokaro, being Misc. (4h) case No. 110 of 2016-17 and a notice was issued to the petitioner from the Court of Addl. Collector, Bokaro seeking reply as to why the Jamabandi of the petitioner over the said land be not cancelled u/s 4(h) of the Bihar Land Reforms Act, 1950 (in short ‘the Act, 1950’). The petitioner filed his reply and the final order was passed on 09.09.2016 by the Additional Collector, Bokaro as well as the Deputy Commissioner, Bokaro whereby the Jamabandi of the petitioner over the said land was annulled holding inter alia that the same was illegal and false as per section 4(h) of the Act, 1950. 3. The learned counsel for the petitioner submits that on the basis of the Auction Certificate Case No.19 of 1933, the Jamabandi was created initially in the name of the grandfather of the petitioner and thereafter in the name of the petitioner, whereby the land was settled in the name of Samir Mahto (the grandfather of the petitioner). It is also submitted that the Jamabandi created by the order of the Circle Officer has been declared false and fabricated only on the ground that the same has been written by a ball pen whereas during the year 1965-66, ball pen was not in use. However, as a matter of fact, ball pen was invented in the year 1938 itself. It is further submitted that the concerned authorities have completely ignored the documents produced by the petitioner which are of the year 1933 and have based their order primarily on issue of the invention of the ball pen during the relevant year. However, as a matter of fact, ball pen was invented in the year 1938 itself. It is further submitted that the concerned authorities have completely ignored the documents produced by the petitioner which are of the year 1933 and have based their order primarily on issue of the invention of the ball pen during the relevant year. It is further submitted that in the impugned order dated 9.5.2016 the respondent authorities have observed that the land has been notified as a Forest Land vide notification dated 14.05.1958 but the said notification has also not been brought on record. Moreover, the raiyati land cannot be notified as a forest land unless and until the same is acquired after giving proper compensation. It is further submitted that after the land is declared as a forest land, the same is also required to be shown in map of the forest department, but the forest department has also been unable to produce any such map of the land which could have confirmed the said notification showing the land in question as forest land. It is further submitted that there was a criminal case instituted by the concerned department regarding the said land, which was numbered as Sector-XII P.S Case No.50 of 2016, wherein the SIT had investigated the matter but it could not find any such map of the aforesaid land from the forest department. It is also submitted that the auction certificate case instituted in the year 1933 was sent for verification to the Purulia Sub-Registrar vide letter no.1282 dated 29.06.2016, but without waiting for any report from the Purulia Sub-Registrar, the impugned order was passed and as such the authenticity of the said document could not be verified. It is further submitted that the long running Jamabandi cannot be cancelled by initiating a proceeding under Section 4(h) of the Act, 1950 as a summary proceeding. The respondents should have looked into the documents produced by the petitioner which were about 80 years old. The proceeding under section 4(h) can only be initiated if any transfer was made at any time after the first day of January 1946 with an object to defeat the provisions of the Act, 1950 or for causing loss to the State or for obtaining higher compensation from the State. The proceeding under section 4(h) can only be initiated if any transfer was made at any time after the first day of January 1946 with an object to defeat the provisions of the Act, 1950 or for causing loss to the State or for obtaining higher compensation from the State. It would be evident from Register-II Tenancy Ledger that by the order of the Circle Officer, Chas the land was mutated in the name of Samir Mahto son of Bhuran Mahto- caste Muslim (the ancestor of the petitioner). Initially the rent receipts were being issued regularly in the name of Samir Mahto and, subsequently, the same were issued in the name of Izhar Hussain (the petitioner), who is the grandson of Samir Mahto. The petitioner also sold 6 decimals of land out of the said land to one Badu Ram, who got his name mutated vide correction slip dated 20.11.2015 and, thereafter, the rent receipt was also issued in his name in respect of the land purchased by him. 4. The learned counsel for the petitioner puts reliance on a judgment rendered by the Division Bench of this Court in the case of The State of Jharkhand & Ors. Vs. Chancla Devi (L.P.A No. 142 of 2010 with L.P.A No. 307 of 2009). 5. Per contra, the learned counsel appearing on behalf of the respondents submits that the land in question is recorded as Gair Abad Malik in the Khatian, and the nature of the land is Forest/Jungle-Jhari. The said land has been notified as protected forest vide notification no.C/F-17014/58-1429R dated 14.05.1958. It is also submitted that the order dated 9.9.2016 passed by the Additional Collector, Bokaro and the Deputy Commissioner, Bokaro has been approved by the State Government. In support of his claim, the petitioner has not submitted the purported “Jot Patta” vide Deed no.311 dated 31.12.1893 even in the present writ petition. No documents in support of the surrender of the land has been filed before this Court and, therefore, the same is liable to be rejected. It is also submitted that the surrender deed no.5018 is of 25.11.1933, however, the dates of certificate of sale have been mentioned as 23.10.1933 and 28.11.1933 which creates suspicion and this fact cannot be adjudicated in writ jurisdiction of this Court. It is also submitted that the surrender deed no.5018 is of 25.11.1933, however, the dates of certificate of sale have been mentioned as 23.10.1933 and 28.11.1933 which creates suspicion and this fact cannot be adjudicated in writ jurisdiction of this Court. It is settled principle of law that the title can be declared only on the strength of adducing sufficient evidence, but the petitioner has not been able to prima facie establish the same. The ancestors of the petitioner have never been in possession of the said land. The Jamabandi was opened without any previous permission of the competent authority. The purported Jamabandi No.1665 was opened vide order dated 17.03.2016 passed in Misc. Case No. 56 of 2015-16 in the name of the petitioner after making manipulation in Register-II. The land in question was recorded in the Khatiyan as “Gair Abad Malik”. Therefore, the question regarding acquisition of the said land under the provisions of Land Acquisition Act, 1894 does not arise at all after vesting of the Zamindari. All Gair Abad Malik lands were vested in State Government except those in which the returns were filed by the ex-landlord showing any settlement to this effect. 6. Heard the learned counsel for the parties and perused the materials available on record. The case of the petitioner is that the said land was acquired by his ancestors in an auction proceeding vide Certificate Case No.191 of 1933 and the Jamabandi was also opened in their name and they paid rent to the State Government. The said fact is evident from the order dated 17.03.2016 passed by the Circle Officer, Chas in Misc. Case No.56 of 2015-16 (Annexure-5). Thereafter, in the light of letter no.2074 dated 13.05.2016 issued by the Chief Secretary, Government of Jharkhand and letter no.1179 dated 18.5.2016 issued by the Additional Collector, Bokaro, the Sub Divisional Officer, chas vide letter no.487 dated 25.7.2016 directed the Circle Officer, Chas to initiate a doubtful Jamabandi case against the said land and as such the Circle Officer, Chas instituted Case No.01 (VII) of 2016-17 and it was noticed by the Circle Officer, Chas that the Jamabandi with respect to the said land was not opened by any order of the competent authority and the pen used for opening the said Jamabandi was a ball pen, which creates suspicion. It was further observed that the land has been recorded as Gair Abad Malik, showing nature of the land as Jungle Jhari, which was notified as protected forest. Accordingly, the Circle Officer, Chas recommended for cancellation of Jamabandi under Section 4(h) of the Act, 1950 and the matter was referred to the Court of Additional Collector, Bokaro and Misc. 4(h) Case No.110 of 2016-17 was instituted, which was disposed of by the impugned order dated 9.9.2016 and the same was confirmed by the State Government vide letter contained in Memo No.6387 dated 15.12.2016. 7. It has been contended on behalf of the petitioner that the proceeding under section 4(h) of the Act, 1950 can be initiated only to look into the legality of transfer of land made after 1st January, 1946 so as to find out whether the same had been made with an object to defeat the provisions of this Act or for causing loss to the State or for obtaining higher compensation. Since in the present case, the transfer was made before the cut-off date i.e. 01.01.1946, the proceeding initiated by the respondents is itself illegal and without jurisdiction. 8. On bare reading of section 4(h) of Act, 1950, it would be evident that the Collector has been empowered to make enquiry as to whether the transfer of the land has been made after 01.01.1946 with an object of defeating the provisions of the Act, 1950 or for causing loss to the State or for obtaining higher compensation and after giving reasonable opportunity to the parties, the said authority may pass an order of annulment of transfer and dispossession of a person. No finding has been recorded by the learned court below as to whether the transfer was made after 01.01.1946 with the object of defeating any provisions of the Act, 1950 or causing loss to the State or obtaining higher compensation which is the prime purpose for cancellation of settlement as prescribed under section 4(h) of the Act, 1950. Thus, I am of the view that the learned court below has exceeded its jurisdiction while passing the impugned order. 9. Thus, I am of the view that the learned court below has exceeded its jurisdiction while passing the impugned order. 9. In the case of Chancla Devi (Supra.) the learned Division Bench of this Court has held that if the State Government is claiming the ownership upon the property in question which is in possession of the tenant/raiyat and his/her predecessors-in-title since 09.06.1942, the Civil Suit is the only remedy available with the State Government. 10. It has been contended on behalf of the respondents that the said land is recorded as Gair Abad Malik, Jungle Jhari and a notification under Section 29 of the Indian Forest Act, 1927 was published to declare the said land as protected forest and thus, the petitioner has no right upon the said land. 11. I have perused Section 29 of the Indian Forest Act, 1927, which reads as under: “29(1) The State Government may, by notification in the Official Gazette, declare the provisions of this Chapter applicable to any forest-land or waste-land which is not included in a reserved forest, but which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest-produce of which the Government is entitled. (2) The forest-land and waste-land comprised in any such notification, shall be called a "protected forest". (3) No such notification shall be made unless the nature and extent of the rights of Government and of private persons in or over the forest-land or waste-land comprised therein have been inquired into and recorded at a survey or settlement, or in such other manner as the State Government, thinks sufficient. Every such record shall be presumed to be correct until the contrary is proved: Provided that, if, in the case of any forest-land or waste-land, the State Government thinks that such inquiry and record are necessary, but that they will occupy such length of time as in the meantime to endanger the rights of Government, the State Government may, pending such inquiry and record, declare such land to be a protected forest, but so as not to abridge or affect any existing rights of individuals or communities. 12. 12. Section 29(1) of the Act, 1927 explicitly provides that the State Government may notify any forest land or waste land as protected forest over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Government is entitled. The condition precedent for issuing any notification under section 29 (1) is the inquiry be conducted under section 29 (3) regarding the nature and extent of right of the Government and of the private persons upon the forest land or the waste land. In the notification dated 24.5.1958 published in the Bihar Gazette on 9.7.1958, it has been provided as under: “The nature and extent of the rights of Government and of private persons in or over the forest land and waste lands comprised in this notification have not yet been enquired into and recorded as laid down in sub-section (3) of section 29 of the said Act but as the State Government thinks that such enquiry and record will occupy such length of time as in the meantime to endanger the right of Government and as the enquiry and record of rights will hereafter be made this notification be heard subject to all existing rights of individuals or communities.” 13. The respondents are claiming proprietary right upon the said land on the ground that the same is Gair Abad Malik (Jungle-jhari) and as such, by reasons of the promulgation of the Act, 1950, the same has vested to the Government. Admittedly, the land was notified as forest land in the year 1958. However, the case of the petitioner is that before issuance of the said notification, the land was already acquired by his ancestor vide Certificate Case No.191/1933. 14. Admittedly, the land was notified as forest land in the year 1958. However, the case of the petitioner is that before issuance of the said notification, the land was already acquired by his ancestor vide Certificate Case No.191/1933. 14. Further, Section 2 of the Forest Conservation Act, 1980 provides as under:- “S.2 : Restriction on the dereservation of forests or use of forest land for non-forest purpose Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing,” (i) that any reserved forest (within the meaning of the expression reserved forest in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved; (ii) that any forest land or any portion thereof may be used for any non-forest purpose; (iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government; (iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for re afforestation. Explanation: For the purposes of this section ‘‘non-forest purpose” means the breaking up or clearing of any forest land or portion thereof for” (a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants; (b) any purpose other than re-afforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.” 15. In the case of T.N. Godavarman Thirumulkapad etc. vs. Union of India & Ors., reported in (1997) 2 SCC 267 , in para 4, it has been held as under: “4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word “forest’’ must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term “forest land”, occurring in Section 2, will not only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this court in Ambica Quarrry Works and Ors. v. State of Gujarat and Ors., Rural Litigation and Entitlement Kendra v. State of U.P., and recently in the order in Supreme Court Monitoring Committee v. Mussorie Dehradun Development Authority and Ors. The earlier decision of this court in State of Bihar v. Banshi Ram Modi and Ors., has, therefore, to be understood in the light of these subsequent decision. We consider it necessary to reiterate this settled position emerging from the decisions of this court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this court. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay.” 16. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay.” 16. In view of the provisions contained in Section 2 of the Forest Conservation Act, 1980 and the judgment of the Hon’ble Supreme Court rendered in the case of T. Godavarman (Supra.), it is abundantly clear that Section 2 of the Act, 1980 is applicable to the government as well as the private forest land, so as to check/restrict deforestation which ultimately results in ecological imbalance. The term ‘Forest’ will not only mean forest as understood in the dictionary sense but will also include the land recorded as forest in the government record irrespective of its ownership. Thus, the purpose of Section 2 of the Forest Conservation Act, 1980 is to check deforestation irrespective of the fact that the land is owned by the government or by the private person. Nevertheless, the provisions of Section 2 of the Forest Conservation Act, 1980 or the judgment of the Hon’ble Supreme court rendered in the case of T. Godavarman (Supra.) cannot be applied by the respondent authorities for cancellation of Jamabandi much less the long running one. 17. In view of the discussions made herein above, the impugned order 09.09.2016 and the consequential orders dated 15-12-2016 and 18.01.2017 are hereby quashed and set aside having been passed beyond the jurisdiction. The writ petition is, accordingly, allowed. 18. However, the respondents are at liberty to take appropriate recourse before the civil court having competent jurisdiction, if they claim the title of the government over the said land.