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2022 DIGILAW 1034 (CAL)

Mantu Gopal Deogharia v. State Of West Bengal

2022-07-18

SUVRA GHOSH

body2022
JUDGMENT Suvra Ghosh, J. - In the present application, the applicants have sought to add themselves as party respondents to the writ petition on the ground that they are necessary and proper parties herein. Learned counsel for the applicants submits that the entire plot no. 164 has been declared as 'protected forest' by virtue of notification published in the Calcutta Gazette on May 17, 1956 and the land is vested with the Government since then. Section 29 (1) of the Indian Forest Act, 1927 demonstrates that the State Government may by notification declare the provisions of Chapter- IV of the Act 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. According to learned counsel, the term 'property of Government' indicates vested land. Learned counsel has submitted that as the plot in question is vested with the forest department by virtue of notification dated May 17, 1956, the applicants are necessary parties to the writ petition and should be granted an opportunity of hearing when the writ petition is dealt with. 2. Per contra, it is submitted on behalf of the opposite parties/writ petitioners that the Act of 1927 is bereft of any provision for vesting of land. The names of the petitioners appear as occupiers in the C.S. and R.S. record of rights indicating that the portion of the plot owned and occupied by them have not been vested. The petitioners' plot has been recorded as baid in the record of rights and does not form part of the land declared as protected forest by the State. 3. Placing reliance on the authorities in Rajkumar Rajinder Singh v/s. State of Himachal Pradesh and Others reported in (1990) 4 Supreme Court Cases 320 and M/s. Jetmull Bhojraj v/s. The State of Bihar and Others reported in 1966 SCC Online Pat 85, learned counsel has submitted that there is no provision in Chapter-IV for transfer of possession of any property in favour of the Government by virtue of notification under section 29. The proviso to the section can at best authorise the Forest Officer to prevent felling, selling or appropriating forest trees pending inquiry into the matter. The proviso to the section can at best authorise the Forest Officer to prevent felling, selling or appropriating forest trees pending inquiry into the matter. As such, the applicants have no role to play in the present writ petition which is primarily for compliance of a direction of a coordinate bench of this Court passed by an order dated 31st July, 2019 passed in W.P. 2819 (W) of 2018. Learned Counsel has further submitted that in view of construction of a super speciality hospital in the plot in question, the said plot cannot be said to be included in 'protected forest'. 4. Section 29 of the Indian Forest Act, 1927 is set out:- '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 forests produce of which the Government is entitled. (2) The forest-land and waste-lands comprised in any such notification shall be called a 'protected forests'. (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 mean time 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.' 5. The provision clearly demonstrates that the provisions of Chapter-IV shall be declared to be applicable by notification to any forest land which is the property of the Government or over which the Government has proprietary rights. The provision clearly demonstrates that the provisions of Chapter-IV shall be declared to be applicable by notification to any forest land which is the property of the Government or over which the Government has proprietary rights. Taking into account the submission made on behalf of the applicants that the term 'property of Government' indicates that the property is vested land, there is no document on record which suggests that the portion of the property occupied by the petitioners has been vested with the Government. The Act of 1927 is bereft of any provision for vesting of land by the Forest Department. Had such provision been made available in the Act itself, vesting proceeding under the West Bengal Land Reforms Act, 1955 would not have been initiated against one Tulshibala Kundu in respect of portions of the plot in question. It is also not clear as to how a portion of the plot was made over for construction of a super speciality hospital despite the same being declared as protected forest. There is nothing on record to indicate that inquiry with regard to the nature and extent of the right of Government and of private person was held in terms of section 29(3) of the Act of 1927, without which no notification could have been issued. There being no prima facie evidence to suggest that the plot occupied by the petitioners has been notified as protected forest in due course of law, it is held that the applicants cannot be said to be necessary or proper parties to the present writ petition which can be very well be dealt with in presence of the State respondents. 6. It is pertinent to mention here that this issue was not raised by the respondents in the earlier writ petition wherein the District Land & Land Reforms Officer, Bankura was directed to prepare and correct the L.R. map with regard to the disputed area over which the super speciality hospital has been constructed. The authority was further directed to demarcate the area vested with the State in view of the claim of the petitioners that a portion of their land has been encroached upon by the State respondents while constructing the hospital. In the present writ petition the petitioners have prayed for compliance of the earlier order passed on July 31, 2019 and corrected on November 13, 2019, by the concerned authority. In the present writ petition the petitioners have prayed for compliance of the earlier order passed on July 31, 2019 and corrected on November 13, 2019, by the concerned authority. The prayers of the writ petition being in tune with the order of the earlier writ petition, there is no change of circumstance which warrants addition of the applicants as party-respondents in the present matter. 7. In view of the above, CAN 1 of 2022 is dismissed. 8. There shall however be no order as to costs. 9. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities. (Suvra Ghosh, J) Later : Re : CAN No. 1 of 2022 Learned counsel appearing on behalf of the State-respondents prays for stay of operation of this judgment. Such prayer is considered and rejected. Re : WPA No. 14241 of 2021 Let this matter appear under the heading 'Motion' on August 05, 2022.