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2023 DIGILAW 680 (JHR)

Aashik Miyan @ Ashik Miyan v. State of Jharkhand

2023-05-11

RAJESH SHANKAR

body2023
ORDER : 1. The present writ petition has been filed for issuance of direction upon the respondent authorities to revise the map and to publish a notification under Section 47 of the Bihar Private Forests Act, 1947 (hereinafter referred to as “the Act 1947”) in terms with order dated 21.08.1949 passed by the then Forest Settlement Officer, Chatra, District Hazaribagh under Section 23 of the Act, 1947 in Case No. 113/73 of 1949-50 for release of 30 acres of land appertaining to Plot Nos. 139 and 145 of village Bhaipur, Thana No. 119, P.S. Chatra, District-Hazaribagh (now Chatra) (hereinafter referred to as “the said land”) from the limits of the private protected forests and also in pursuance of the letter as contained in memo no. 636 dated 11.02.1985 issued by the Special Secretary, Department of Forest and Environment, Government of Bihar to the Chief Conservator of Forest, the erstwhile State of Bihar at Ranchi conveying that his recommendation made vide letter no. 5417 dated 26.07.1984 for release of the said land from the limits of the private protected forests was approved by the State Government. 2. Learned counsel for the petitioners submits that the said land was recorded in the Record of Rights as Gairmazarua Khas under the Tenure Holder/Zamindar-Jagarnath Sahay. After death of the said Tenure Holder/Zamindar, all his estates were inherited by his legal heirs and successors including Babu Bisheshwar Sahay, who got the said land in his share. After demise of Babu Bisheshwar Sahay, his legal heirs and successors inherited his property and the said land came in the share of Babu Krishna Ballabh Sahay. In the meantime, the said land was declared as private protected forest under the provisions of the Act, 1947. Thereafter, Babu Krishna Ballabh Sahay submitted an application under Section 23 of the Act, 1947 to the Forest Settlement Officer, Chatra for exclusion of the said land from the limits of the private protected forests on the ground that the same was a plain land and was fit for cultivation at a very small cost as the forest over the said area was not dense. The said application of Babu Krishna Ballabh Sahay was registered as Case No. 113/73 of 1949-50 and the Forest Settlement Officer, Chatra made an enquiry over the said claims of Babu Krishna Ballabh Sahay and passed an order dated 21.08.1949 for release of the said land from the limits of the private protected forest of Village-Bhaipur. 3. Thereafter, vide Hukumnama dated 17.05.1950, Babu Krishna Ballabh Sahay settled the said land in favour of his wife, Smt. Leela Devi @ Leelavati Devi at a fixed rent with Kayami Raiyati rights. The Settlee then regularly paid rent to the Tenure Holder/Zamindar against issuance of proper rent receipts. After the demise of the said Settlee, all her estates including the said land were jointly inherited by her legal heirs and successors i.e. her two sons, Arun Kumar Sinha and Pradeep Kumar Sinha on the application given by Arun Kumar Sinha. Jamabandi of the said land was opened in his name vide Case No. 08/1975-76 and thereafter he regularly paid rent to the government against issuance of proper rent receipts. 4. It is further submitted that Arun Kumar Sinha and Pradeep Kumar Sinha requested several times to the concerned authorities of the Forest Department to revise the map and publish a notification under Section 47 of the Act, 1947 in terms with order dated 21.08.1949 passed by the then Forest Settlement Officer, Chatra, District-Hazaribagh, however, the respondent authorities did not yield to their requests. 5. It is also submitted that the Chief Conservator of Forest, Bihar, Ranchi vide letter no. 5417 dated 26.07.1984 addressed to the Special Secretary, Department of Forests and Environment, Government of Bihar, Patna, made recommendation for approval to release of the said land from the limits of the private protected forests of the Village-Bhaipur, Thana No. 119 and thereafter the Special Secretary, Department of Forests & Environment, Government of Bihar, Patna, vide letter as contained in memo no. 636 dated 11.02.1985 directed the Chief Conservator of Forest, Bihar, Ranchi, to exclude the said land from the private protected forests of the concerned village and to revise the map accordingly with intimation to the State Government, but that exercise was not carried out by the Chief Conservator of Forest, Bihar, Ranchi. 6. 636 dated 11.02.1985 directed the Chief Conservator of Forest, Bihar, Ranchi, to exclude the said land from the private protected forests of the concerned village and to revise the map accordingly with intimation to the State Government, but that exercise was not carried out by the Chief Conservator of Forest, Bihar, Ranchi. 6. Learned counsel for the petitioners further submits that the petitioners are the vendees of different parcels of the said land purchased from the vendors namely, Arun Kumar Sinha and Pradeep Kumar Sinha, who have not only been carrying out cultivation on the said land for a very long time, but have also excavated wells, constructed boundary walls, kutcha and/or pucca houses over the same and they have been residing there since long. After coming into possession of their respective parcel of land, the petitioners repeatedly made representations to the concerned authorities to revise the map and to publish notification under Section 47 of the Act, 1947 in terms with order dated 21.08.1949 upon which the respondent no. 8 ordered for conducting a survey and to submit a report. Thereafter, Forester, Kari Forest Area along with three Forest Guards conducted a survey and submitted a report to the respondent no. 8 vide letter no. 54 dated 02.07.1994 annexing a map confirming that the petitioners had been cultivating and residing on the said land. The petitioners also made representation to the respondent no. 6 the Divisional Forest Officer, North Forest Division, Chatra on 12.06.2004 whereupon the said respondent asked the respondent no. 8 the Forest Range Officer, Rajpur Range, Chatra to conduct a survey on the concerned site and to submit a report, however, no action was taken thereafter. 7. It is also submitted that recently the petitioners made joint representation dated 13.09.2017 to the respondent no. 6, however, nothing was done rather, the forest officials have instituted criminal cases against as many as 9 petitioners and their family members with an allegation of encroachment over the forest land. 8. Per contra, learned counsel for the respondents submits that the said land is uncultivable as there are small trees and bushes on the entire land. After vesting of Zamindari, all the Gairmazarua lands including the said land came under the direct control of the State. 8. Per contra, learned counsel for the respondents submits that the said land is uncultivable as there are small trees and bushes on the entire land. After vesting of Zamindari, all the Gairmazarua lands including the said land came under the direct control of the State. Subsequently, vide Notification No. C/F-170/101/54-1042R dated 05.03.1955, the said land was declared as protected forest and after due verification and measurement done by the concerned Forest Settlement Officer, the same was duly demarcated as well as the map of forest land was prepared in which the said land also find place. The petitioners have purchased the said land without seeking permission from the Forest Department and as such the alleged sale deeds are not binding on the respondents. 9. It is further submitted that the notification declaring the said land as protected forest was issued in the year 1955 and the present writ petition has been filed in the year 2018 after such a long delay and hence, the present writ petition is not maintainable. The respondents are not bound to revise the map and to publish a notification under Section 47 of the Act, 1947 in the light of the order pursuant to the order dated 21.08.1949 passed by the Forest Settlement Officer, Chatra since the said order was passed on the application of the tenure holder seeking release of the said land from the limits of private protected forest of the Village-Bhaipur without any notice to the Forest Department. Since the said land had vested in the State after abolition of Zamindari, there was no question of inheritance of the said land by the heirs of the then landlord. 10. It is also submitted that the case record of Case No. 113/73 of 1949-50 is not available before the respondents and the documents filed by the petitioners seem to be forged and fictitious. The alleged Hukumnama dated 17.05.1950 has been executed with a view to grab the forest land. Moreover, the Hukumnama executed after 01.01.1946 comes under the purview of Section 4(h) of the Bihar Land Reforms Act, 1950 being a suspicious document. The Sada Hukumnama has no value in the eye of law in absence of return filed by the concerned Zamindar at the time of vesting. The State has not recognized the Settlee namely, Smt. Leela Devi @ Lilawati Devi as raiyat after vesting of Zamindari. The Sada Hukumnama has no value in the eye of law in absence of return filed by the concerned Zamindar at the time of vesting. The State has not recognized the Settlee namely, Smt. Leela Devi @ Lilawati Devi as raiyat after vesting of Zamindari. It is settled principle of law that government rent receipts neither create title nor extinguish any right of a party. Grant of rent receipts cannot have any effect upon government notification issued for protected forest area. 11. Heard the learned counsel for the parties and perused the materials available on record. The petitioners have claimed revision of the forest map and publication of notification under Section 47 of the Act, 1947 for release of the said land from the private protected forest. 12. Learned counsel for the petitioners primarily puts reliance on the order of the Forest Settlement Officer, Chatra dated 21.08.1949 (Annexure-2 to the writ petition) on the basis of which it is claimed that on the objection of the tenure holder, the said land was released from the private protected forest under Section 23 of the Act, 1947. 13. Learned counsel for the respondents, on the contrary, puts reliance on notification dated 05.03.1955 issued under Section 29 of the Indian Forest Act, 1927 (hereinafter referred to as “the Act 1927”) whereby several lands including the said land have been declared as protected forest. On bare perusal of the notification dated 05.03.1955, it appears that the same was issued without making any enquiry with respect to the rights of Government vis-a-vis the private persons mentioning inter-alia that the enquiry regarding rights of Government along with record of rights would be made subsequent to issuance of the said notification. It was also stated in the said notification that the same was being issued subject to all existing rights of individuals or communities. 14. To appreciate the rival contentions of learned counsel for the parties, it would be appropriate to refer some of the relevant provisions of the Act, 1947 and the Act, 1927. 15. Section 2 of the Act, 1947 provides that the said Act shall not apply to any land which is vested in the Government; or to any land in respect of which notifications and orders issued under the Act, 1927 are in force. 15. Section 2 of the Act, 1947 provides that the said Act shall not apply to any land which is vested in the Government; or to any land in respect of which notifications and orders issued under the Act, 1927 are in force. Section 13 empowers the State Government to constitute any private forest as a private protected forest in the public interest. Section 14 provides for issuance of notification by the State Government to constitute any private forest as a private protected forest, specifying as nearly as possible, the situation and limits of such forests; and inviting objection from any landlord whose interests are likely to be affected if such forest is constituted a private protected forest. Section 15 provides for hearing of objection and passing of order either dismissing such objection, or directing that the proposal to constitute the said forest as a private protected forest shall be dropped either in respect of the whole of the said forest or in respect of a part of it to be specified in the order. It is also provided that any landlord who is aggrieved by an order passed by the Collector under sub-section (1) of Section 15 or any Forest Officer or other person generally or specially empowered by the State Government in this behalf, may present an appeal to the Commissioner within the prescribed period and the order passed in such appeal by the Commissioner shall be final, subject only to revision by the authority appointed by the State Government in that behalf. If no objection is presented under clause (c) of sub-section (1) of Section 14 or if such objection, is presented and is finally disposed of under the provision of this section, the State Government may, where it considers that any area included in the notification issued under Section 14 should be constituted a private protected forest, issue a notification declaring that it has been decided to constitute such area as a private protected forest, specifying as nearly as possible the situation and limits of that area and appointing Forest Settlement Officer to inquire into and determine the existence, nature and extent of any rights other than landlords' rights alleged to exist in favour of any person in or over any land comprised within such limits, or in or over any forest produce and to deal with the same as provided in Chapter III. 16. 16. Section 23 empowers the Forest Settlement Officer to pass an order admitting or rejecting the claim of any person in or over any land, other than a right-of-way or right of pasture, or a right to forest-produce or a water course. Section 30 provides for issuance of Notification by the State Government specifying the limits of the forest which is to be constituted as a private protected forest and declaring the same to be a private protected forest from the date fixed by the notification and such forest shall be deemed to be a private protected forest from the date so fixed. Section 47 provides that the State Government may at any time, by notification declare that any private protected forest or any portion thereof shall cease to be a private protected forest from such date as may be specified in the notification. 17. Section 29 of the Act, 1927 empowers the State Government to issue notification in the Official Gazette to declare any forest-land or waste-land as a protected forest which is not included in a reserved forest and 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. No such notification shall be issued 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. However, if the State Government is of opinion that the State authorities will occupy such length of time in making record of survey or enquiry 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. 18. 18. On conjoint reading of the provisions of the Act, 1927 and the Act, 1947, it will be evident that on the one hand, the former speaks about the procedure to be followed by the State Government to declare any property of Government as protected forest and on the other hand, the later provides about the procedure for declaration by the State Government constituting any private forest as private protected forest. 19. In view of the specific provision under Section 2 of the Act, 1947, the provisions of the said Act was not applicable to any land in respect of which notifications and orders issued under the Act, 1927 are in force. Although, the petitioner has brought before this Court the order of the Forest Settlement Officer, Chatra passed under Section 23 of the Act, 1947 for release of the said land from the limits of private protected forest, however, the notification brought on record by the respondents has been issued by the State Government subsequent to the said order whereby the State Government in exercise of the power conferred under Section 29 of the Act, 1927 declared the said land as protected forest. Thus, it seems that the State Government claimed its title over the said land while issuing the notification under Section 29 of the Act, 1927. The petitioners have not brought on record the order of any competent authority which would reflect that the said land was released in their favour subsequent to issuance of the said notification. 20. Thus, on mere ground that there was an order for release of the land in question in favour of the ex-landlord, the petitioners are not entitled to get any relief as subsequent to passing of the said order by the Forest Settlement Officer, Chatra, a notification under Section 29 of the Act, 1927 was issued declaring the said land as protected forest and thereby the Act, 1947 would not apply to the said land in respect of which the provisions of the Act, 1927 is in force. 21. So far as the claim of creation of jamabandi in the name of legal heirs of the settlee and subsequently in favour of the petitioners as well as issuance of rent receipts in their favour is concerned, the petitioners are at liberty to rely on the same before an appropriate proceeding in the competent court of law/forum. 21. So far as the claim of creation of jamabandi in the name of legal heirs of the settlee and subsequently in favour of the petitioners as well as issuance of rent receipts in their favour is concerned, the petitioners are at liberty to rely on the same before an appropriate proceeding in the competent court of law/forum. Nonetheless, on that very ground, the petitioners are not entitled to get any relief as prayed under Article 226 of the Constitution of India. 22. The writ petition is accordingly dismissed with aforesaid observation.