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2019 DIGILAW 1889 (JHR)

Khudiya Munda v. State of Jharkhand

2019-11-20

RAJESH SHANKAR

body2019
JUDGMENT : 1. The present writ petition has been filed for quashing the order dated 13.07.2005 (Annexure-7 to the writ petition) passed by the respondent No.4 in Case No. 28/05-06. Further prayer has been made for issuance of a direction upon the respondent No.5 to continue with the land acquisition proceeding and to pay the proportionate share of compensation to the petitioners in accordance with law within a stipulated period. 2. The factual background of the case, as stated in the writ petition, is that the land appertaining to Khata No. 60, Plot Nos. 350 & 947, measuring an area of 20 acres 50½ decimals, Village-Bargaon, P.O-Chope, P.S & Circle - Simariya, District-Chatra (hereinafter referred to as ‘the said land’) was recorded as ‘Gair Mazurwa Khas’ and the same was settled by the ex-landlord in favour of the petitioners’ ancestors. According to the petitioners, a rent fixation case being Rent Misc. Case No. 31 of 1950-51 was initiated before the respondent No.3 under Section 139 of the Chhotanagpur Tenancy Act (hereinafter referred to as ‘the C.N.T. Act’) between the petitioners’ ancestors and the ex-landlord which was allowed vide order dated 18.10.1951. The names of the petitioners’ ancestors were also included in the Zamindari return dated 04.09.1962. The petitioners/their ancestors were paying the rent continuously since 04.02.1955 till the year 2007-08. In the year 2001-02, the said land was acquired for construction of railway line between Hazaribagh and Koderma and a surveyor was appointed by the respondent No.5, who reported that the nature of the said land is ‘Gair Mazurwa Khas’ and the raiyats were possessing settlement deed (Hukumnama), revenue receipts and copy of return filed by the ex-landlord etc. It was also reported that two houses (tiled) were situated over the said land which were in possession of the petitioners. As per the said report, government rent receipts were issued for 100 acres of land in the names of Hema Munda, Chara Munda, Khudia Munda and others. However, the respondent No.4, on the check slip submitted by the Circle Inspector for giving raiyati recognition of the said land to the petitioners, observed that the said recognition cannot be given as the said land comes under the forest area. 3. Learned counsel for the petitioners submits that the forest department never served any notice to the petitioners/their ancestors that the said land had been taken by the said department. 3. Learned counsel for the petitioners submits that the forest department never served any notice to the petitioners/their ancestors that the said land had been taken by the said department. The Circle Inspector silently issued check slip for declaration of ‘Gair Mazurwa Khas’ land as raiyati land and made negative recommendation to the respondent No.4 on 08.07.2005 that the land in question fell under the forest area. The respondent No.4 rejected the raiyati recognition of the said land on 13.07.2005 without giving any information to the petitioners. The petitioners have been recognized by the revenue authorities as the tenants/settled raiyats and they cannot be ejected from the said land without paying due compensation. It is further submitted that the railway has started the said construction work under the instruction of the respondent Nos. 1 to 5 causing great injustice to the petitioners. The names of the petitioners were mutated by the respondent No.3 being the In-Charge of the civil matters in the sub-division. It is further submitted that as per Section 3(viii)(a) of the C.N.T Act, any Revenue Officer or the Deputy Collector specifically empowered by the State Government is entitled to discharge any function of the Deputy Commissioner under that provision. In exercise of the said power, the Lieutenant Governor had empowered every Deputy Collector, who at the relevant time was In-Charge of the sub-division of a district to discharge all the functions of the Deputy Commissioner under any provision of the C.N.T Act, except the provisions as contained in Sections 3(xxviii)(b), 49, 50, 137, 215(ii), 218(2) & 241 of the C.N.T Act. It is also submitted that the possession of the said land cannot be passed to the State Government merely by publication of the notification under Section 29 of the Indian Forest Act, 1927 (hereinafter referred to as ‘the Act, 1927’). Thus, the said land cannot be treated as a government property, rather the same is still the raiyati land of the petitioners as per the revenue record. Hence, the impugned order dated 13.07.2005 is wholly without jurisdiction as well as violative of the principles of natural justice and the same is liable to be quashed. 4. In support of his arguments, learned counsel for the petitioners puts reliance on a judgment of the Hon’ble Supreme Court rendered in the case of Raj Kumar Rajinder Singh Vs. State of Himachal Pradesh & Ors. 4. In support of his arguments, learned counsel for the petitioners puts reliance on a judgment of the Hon’ble Supreme Court rendered in the case of Raj Kumar Rajinder Singh Vs. State of Himachal Pradesh & Ors. reported in (1990) 4 SCC 320 . 5. Per-contra, learned counsel for the respondents submits that the said land is recorded as ‘Gair Majurwa Khas’ of the then landlord and the nature of the land has been shown as ‘Jungle Jhari’ and as such after coming into force the Bihar Land Reforms Act, 1950, the said land has vested to the State Government. Moreover, the Department of Revenue, Government of Bihar vide notification No. C/P.F.10171/52-58R dated 02.01.1953, has declared the said land as the forest land and the same has already been included in the forest map which cannot be settled to anyone by the State Government. The names of the petitioners’ ancestors have been included in the Register-II without any recommendation of the competent authority. The respondent No.4 on the basis of the report of the Circle Inspector and Halka Karamchari as well as on careful examination of the record, has rejected the claim of the petitioners over the said land. It is further submitted that though the names of the petitioners’ ancestors were included in Zamindari return as well as in the Register-II, yet the said land has been included in the forest map. The said land is thus under the forest department. It is also submitted that the Governor of Bihar in exercise of the power conferred under sub-section 3 of Section 29 of the Act, 1927 and in super-session of all the existing notifications on the subject, laid down the procedure for inquiring into and recording the rights of the government vis-a-vis private persons over the forest land and the waste land situated within the protected forest area. According to the said procedure, the Forest Settlement Officer was empowered to decide the claim made by the government or the private persons over the forest land and the waste land situated within the protected forest area. In pursuance of the said notification, the State Government duly measured the said land, but the petitioners never filed any objection/claim on the basis of the raiyati settlement of the said land in their favour. In pursuance of the said notification, the State Government duly measured the said land, but the petitioners never filed any objection/claim on the basis of the raiyati settlement of the said land in their favour. The Forest Settlement Officer, after detailed enquiry and measurement, prepared master copy of the forest map in which Plot Nos. 350 & 947 have been duly shown as forest land and the same has also been checked by the Assistant Conservator of Forest, West Division, Hazaribagh on 30.03.1967. 6. Heard learned counsel for the parties and perused the materials available on record. The main submission of learned counsel for the petitioners is that the said land was settled by the ex-landlord in favour of their ancestors and the respondent No.3 allowed Rent Misc. Case No. 31 of 1950-51 filed under Section 139 of the C.N.T Act and thereafter the rent was also regularly paid to the State Government. After vesting of Zamindari, the ex-landlord also filed the return showing the petitioners’ ancestors as the settlees of the said land. Thereafter, the said land was also mutated in the names of the petitioners’ ancestors by the competent authority. Since the same has been acquired for the purpose of construction of railway line, the petitioners are entitled to get due compensation being the owners of the said land. 7. The respondents have denied the said contention of the petitioners especially on the ground that the said land is recorded in the Record of Rights as ‘Gair Majurwa Khas’ (Kism-Jungle Jhari) and therefore according to them, after abolition of Zamindari, the same has vested to the Government. The respondents have also taken the stand that vide notification dated 02.01.1953, the said land was declared as the forest land and the same was also included in the forest map as the forest land. Thus, it appears that though the respondents have not specifically denied the petitioners’ claim that the said land was settled in favour of their ancestors and their names were also included in the Register-II, yet it has been stated in the counter affidavit that the said land is ‘Gair Majurwa Khas’ which is included in the forest map and as such no private person can have the right over the same. 8. I do not find any substance in the said contention of the respondents. 8. I do not find any substance in the said contention of the respondents. It is a settled law that before vesting, the Zamindar was entitled to settle the ‘Gair Mazurwa Khas’ land to any person. Admittedly, the said land was notified in the year 1953. However, the case of the petitioner is that before issuance of the said notification, the ex-landlord had already made settlement of the said land in favour of their ancestors and the return to that effect was also filed. It also appears that the mutation of the said land was also allowed long back and the rent for the same was being paid to the State Government regularly. 9. I have also perused Section 29 of the Act, 1927 which reads as under: “29. Protected forests.- (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.” 10. It would thus be evident that Section 29 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 an inquiry under Section 29(3) of the Act, 1927 about the nature and extent of right of the Government vis-a-vis private persons upon the forest or waste land. However, the proviso to sub-section (3) of Section 29 of the Act, 1927 empowers the State Government to issue such notification even before completion of inquiry, if it is found necessary in case of urgency, though such notification would not affect or abridge the right of any individual or community. 11. The respondents have not brought on record copy of the notification dated 02.01.1953 to suggest as to whether the same was issued after inquiring into the right of any individual or community or the same was issued by invoking the power conferred to the State Government under proviso to sub-section (3) of Section 29 of the Act, 1927. Though the respondents have contended that after issuance of the said notification, the said land was duly measured and the petitioners did not file any objection to the same, yet no document in support of the said contention has been brought on record. Moreover, the revenue record does not reveal the possession of the forest department over the said land. 12. The Hon’ble Supreme Court in the case of Raj Kumar Rajinder Singh Vs. State of Himachal Pradesh & Ors. (Supra) has held as under: “20. We may now consider the effect of the notification issued under Section 29 of the Indian Forest Act, 1927. Sub-section (1) of Section 29 permits the State Government to issue a notification declaring the application of the provisions of Chapter IV to any forest 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’. The forest land comprised in any such notification is called a ‘protected forest’. Sub-section (3) of Section 29 reads as under: “29. The forest land comprised in any such notification is called a ‘protected forest’. Sub-section (3) of Section 29 reads as under: “29. (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 manner as the State Government thinks sufficient. Every such record shall be presumed to be correct until the contrary is proved:” The proviso to that sub-section, however, permits the State Government to issue a notification before completion of such inquiry and record in the event of urgency. The Division Bench was, therefore, not right in presuming that an inquiry of the type contemplated by sub-section (3) of Section 29 must have preceded the notification. The possibility of the application of the urgency clause cannot be ruled out. The inquiry is contemplated to determine the nature and extent of the rights of the government and of private persons in or over the forest land. Based on the findings of the inquiry the record is to be prepared. The learned trial Judge has observed that ‘after the grant no right of the government in the land in suit was recorded in the Forest Settlement or land revenue settlement or the land revenue records’. Under sub-section (3) such a record shall be presumed to be correct until the contrary is proved. The presumption, therefore, attaches to the record prepared in pursuance of the inquiry. In the present case, no such record evidencing the right of the government in the forest land or forest produce is shown to have been made. Therefore, the question or presumption of correctness of record never arose and the plaintiff was not obliged to dislodge the same. The evidence on the contrary shows that the disputed lands were entered in the revenue records as the private property of the plaintiff. That should be so because where the land in question forms part of a permanently settled grant, it is ordinarily the private property of the grantee. That is why by the subsequent notifications issued under Section 4 of the Himachal Pradesh Private Forest Act, 1954, the disputed forests were notified as private forests of the plaintiff. That should be so because where the land in question forms part of a permanently settled grant, it is ordinarily the private property of the grantee. That is why by the subsequent notifications issued under Section 4 of the Himachal Pradesh Private Forest Act, 1954, the disputed forests were notified as private forests of the plaintiff. The plaintiff, therefore, sought permission, presumably under Section 11 of the said Act, for cutting and felling trees situate in his private forests. If the notification issued under Section 29 held the field, the State Government could not have issued the subsequent notifications under Section 4 of the State Act, in view of Section 2(b) thereof which in terms states that ‘this Act shall not apply to any land which is a reserved or protected forest under the Indian Forest Act, 1927’. But before the State Government can invoke Section 29(1), it must be shown that the requirements of that provision are satisfied. From the various documents placed on record it is quite clear that the disputed forests did not belong to the government nor did the government have any proprietary rights thereon. But the Division Bench has held that the government was entitled to the whole or part of the forest produce under the agreement of lease dated September 25, 1942. The agreement of lease merely permitted the government to manage the forests as the Raja found it difficult to prevent the indiscriminate cutting and felling of trees. To preserve and conserve his forests, the Raja sought the aid of the British Government from time to time. Under the last agreement of lease, the Raja granted the sole control of the forests to the Punjab Government without transferring or conveying his proprietary interests therein. The Punjab Government was liable to account for the usufruct as the Raja was entitled to the whole net surplus determined triennially after deducting from the total revenue from the forests the total expenditure incurred by the Punjab Government over the same period. Therefore, the Government was not ‘entitled’ to the whole or any part of the produce in its own right de hors the lease. Therefore, the Government was not ‘entitled’ to the whole or any part of the produce in its own right de hors the lease. The word ‘entitled’ in the context must take colour from the preceding words and must be understood to mean that the government must have an independent claim or right to the forest produce and not merely a right to collect and deal with the same subject to an obligation to account for the same to the owner. The word ‘entitled’ is used in the sense of the government having a right or claim to the usufruct in its own right and not as the agent of another.” 13. Coming back to the present case, though the respondents have brought on record copy of the forest map in support of their contention that the said land is in possession of the forest department, yet the said map cannot be said to be a conclusive evidence to show the right of the forest department over the said land. It has also been noticed by this Court that copy of the notification dated 02.01.1953 has also not been brought on record by the respondents to find out as to whether the same was issued after inquiring into the right of the petitioners or by invoking the proviso to Section 29(3) of the Act, 1927. Thus, there appears some substance in the case of the petitioners. 14. Under the aforesaid facts and circumstance, the order dated 13.07.2005 (Annexure-7 to the writ petition) passed by the respondent No.4 in Case No. 28/05-06 is hereby quashed and set aside. The matter is remanded to the said authority to decide the same afresh after providing due opportunity of hearing to the petitioners. 15. The present writ petition is, accordingly, disposed of.