Jharkhand High Court
Brajesh Kumar Ray And Anr., Birendra ... vs State Of Jharkhand And Anr. on 16 February, 2005
Equivalent citations: [2005(3)JCR464(JHR)]
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
ORDER
S.J. Mukhopadhaya, A.C.J.
1. As in all the aforesaid cases, common questions of law are Involved, based on common facts, they have been heard together and are being disposed of by this common order.
2. The petitioners claim to be the members of a Co-operative Society, known as Navchetan Sahkari Grih Nirman Samiti, Kamaldih, Chas, District-Bokaro. They have challenged the entire criminal proceeding(s), including the order(s), taking cognizance of the offence under Section 33 of the Indian Forest Act. Some of the petitioners have moved before the District Judge, Bokaro, against the order(s) taking cognizance, by preferring Criminal Revision Applications), which having been dismissed, they have also challenged the revisional order(s) whereas in some of the cases orders passed by the learned Judicial Magistrate, Bokaro, dismissing the discharge petition(s), filed by some of the petitioners, are under challenge.
In Cr. MP No. 771 of 2003, the entire criminal proceeding of BF Case No. 17 of 1999 is under challenge; in Cr. MP No. 772 of 2003 the petitioners have challenged the entire criminal proceedings of BF Case No. 32 of 1999; in Cr. MP No. 1558 of 2003 entire criminal proceeding of BF Case No. 33 of 1999 is under challenge; in Cr. MP No. 1559 of 2003 entire criminal proceeding of BF Case No. 18 of 2000 is under challenge; in Cr. MP No. 1560 of 2003 entire criminal proceeding of BF Case No. 34 of 1999 is under Challenge and in Cr. MP No. 1561 of 2003 entire criminal proceeding of BF Case No. 29 of 2000 is under challenge.
3. Brief fact in all the cases, as pleaded by the petitioners, is that the Government of Bihar, in exercise of power conferred under Section 29 of the Indian Forest Act, 1927 (Act XIV of 1927), issued a Notification on 9th July, 1958, declaring the lands, mentioned in the Schedule of Notification, as forest lands and waste lands, to be called as "protected forest", subject to enquiry with regard to the nature and extent of rights of Government and private parties. The Forest Settlement Officer was appointed on 9th July, 1958 vide Notification No. C/F-701458-1429-R t6 enquire into and decide the right, title and interest of parties. One LA Case No. 4-3/60-61 was registered before the Land Acquisition Officer, Dhanbad in respect of Plot Nos. 370, 337, 335, 20 and 24; having total area of 60.26 Acres, which was dropped on 8th August, 1963. The Forest Settlement Officer, Dhanbad, having heard and after making enquiry, by order dated 28th November, 1964 ordered to release lands having Plot Nos. 370, Khata No. 48 of Mauza-Kamal-dih, Chas, District-Bokaro in Settlement Case No. 55 of 1963-64. He held that unless the State of Bihar acquires any portion of the land by legal procedure, the said land cannot form part of "protected forest".
4. In the said case, petitioner Haru Mahto and some of his co-sharers were present before the Forest Settlement Officer. The Range Officer, Chas was also present. Haru Mahto produced the khatiyan, receipts and other papers, which were noticed vide order dated 30th August, 1964. After hearing the parties, the Forest Settlement Officer, Dhanbad, held "I am convinced that Haru Mahto and his co-sharers have raiyati rights over all the plots, as noted in the order sheet dated 30th August, 1964". It was ordered that Plot Nos. 20, 24, 337 and 370, which had been included in the demarcated area of the forest, be released and the map and pillars be corrected accordingly. Further case of the petitioners is that one Kameshwar Prasad purchased portion of same plots from the descendants of the recorded raiyats vide registered sale deed dated 3rd September, 1973 and came in actual possession of the land. The State of Bihar through its Forest Department raised some objections to the possession of said Kameshwar Prasad. In such a situation, Kameshwar Prasad preferred a writ petition being CWJ No. 418 of 1978-R before Ranchi Bench of Patna High Court. On 8th September, 1978, a Bench of the High Court having recorded the assurance, given by the counsel for the State, that shall he direct his client to give effect to the release order, disposed of the writ petition.
5. One S.R. Mahto and Fulmani Devi had purchased 14 Decimals of land from northern portion of Plot No. 370 and while they were in possession, at the instance of the Forest Department, a proceeding under Section 145, Cr PC, vide MP Case No. 538 of 1979 was initiated, which was finally decided on 11th March, 1980, declaring the possession of said S.R. Mahto and Fulmani Devi and thereby the Forest Department was restrained from interfering or creating trouble with the peaceful possession of said S.R. Mahto and Fulamni Devi. The Forest Department, thereafter preferred Title Suit No. 18 of 1980 in the Court of learned Munsif, Baghmara at Dhanbad, impleading Fulmani Devi and S.R. Mahto as defendants. An interim order of temporary injunction was passed in favour of the Forest Department but in Misc. Appeal No. 42 of 1980, the said interim order for temporary injunction was set aside by the learned District Judge, Dhanbad by order dated 12th May, 1980, Ranchi Bench of Patna High Court also dismissed Cr. Revision No. 303 of 1980, as was preferred by the State of Bihar vide order dated 4th October, 1983.
6. The case of the petitioners is that a Samiti in the name and style of Nav-chetan Sahkari Grih Nlrman Samiti, Kamaldih, was formed in the year 1984 and registered, having Registration No. 6/ Chas/84. The said Samiti purchased part of Plot No. 370 by registered sale deed dated 24th August, 1984 from its rightful owner. A proceeding under Section 145, Cr PC was initiated at the instance of the Forest Department, Chas, against the President and Treasurer of the Samiti in respect of 79 Acres of land out of Polt No. 370, However, it was dropped by Court's order dated 13th March, 1985. Thereafter , a Land Encroachment Case being BPLE Case No. 13 of 1984 was initiated against one Haru Mahto, descendant of the recorded tenant, at the instance of Forest Department, Chas in respect of the land, having part of Plot No. 370, appertaining to Khata No. 48, of Mauza-Kamaldlh, which was dismissed, against which the Forest Department filed M.R. Appeal Case No. 46 of 1984, which also stood dismissed on 11th September, 1985 by the learned Additional Collector, Dhanbad.
7. The Samiti, thereafter, purchased certain more land in between 10th February, 1984 and 29th October, 1986 out of Plot No. 370, Khata No. 48, through 44 registered sale deeds. Certain more lands out of Plot No. 370 were further purchased by the Samiti in between 5th January, 1987 and 17th October, 1987 vide 22 registered sale deeds. They were so purchased for housing purposes for its members, including the petitioners of the present case. The lands were mutated in pursuance of the order, passed in Mutation Case Nos. 32 (VII)/86-87; 55(VII)/86-87 and 67(VII)/86-87. The Samiti, thereafter, started paying rent and obtained rent receipts from the State authorities.
8. The Samiti having further purchased lands by registered sale deed, which was also mutated on 30th January, 1988 vide Mutation Case No. 11(VII)/88-89, started paying rent. Further lands were also purchased by the Samiti till the year, 1996 out of the said Plot No. 370 for its members through various registered sale deeds and having obtained mutation orders, the Samiti is stated to have been paying rent and obtaining rent receipts.
9. It appears that one BPLE Case No. 142 of 1990-91 was initiated against the Samiti in respect of Plot No. 370. Against the said proceeding, the Samiti filed CWJC No. 3783 of 1996-R before Ranchi Bench of Patna High Court. The High Court directed the Divisional Forest Officer to pass appropriate order within sixty days on the question of preliminary objection, relating to maintainability of the case Le BPLE Case No. 142 of 1990-91, with further observation that the Samiti will be entitled to take legal action before the legal Forum, if any adverse order is passed, which will not cause any prejudice to the right, title, interest and possession of the Samiti over the land. The Divisional Forest Officer, Dhan-bad, passed final order on 12th October, 1996, whereinafter, the Samiti preferred Title Suit No. 7 of 1997 after serving notice under Section 80, CPC. It is stated that the suit was filed for permanent injunction. The Divisional Forest Officer filed written statement in the said suit and objected the claim. After hearing the parties. Title Suit No. 7 of 1997 was decreed in favour of the Samiti by judgment and decree dated 23rd January, 1999, passed by the learned 1st Additional Munsif, Bokaro. The Divisional Forest Officer, thereafter, preferred Title Appeal No. 14 of 1999, wherein a petition was also filed for staying the execution of decree. Various orders were passed by the appellate Court from time to time. An interim order of stay was passed in the appeal, against which the Samiti preferred a petition for vacating the same. During pendency of the said appeal, the Divisional Forest Officer , Dhanbad, preferred a number of BF Cases against the members of the Samiti Le. petitioners, alleging offence un,der Section 33 of the Indian Forest Act. They were registered as BF Case Nos. 15 of 1999, 18 of 1999, 32 of 1999, 33 of 1999, 34 of 1999, 18 of 2000 and 29 of 2000. In all those cases, it was alleged that the members of the Samiti were making constructions over Plot No. 370. Out of aforesaid eight BF Cases, two BF Cases namely, BF Case No. 15 of 1999 and BF Case No. 18 of 1999 are stated to have been set aside by the learned Additional Sessions Judge-II, Bokaro, by his common judgment and order dated 18th January, 2002, passed in Cr. Revision No. 67 and 68 of 1999. One Cr. Revision No. 8 of 1999 was allowed by the learned Sessions Judge, Bokaro, vide order dated 25th May, 1999,holding that in view of judgment and decree in favour of the petitioners, the orders passed under Section 144, Cr PC, under the situation,-is not warranted under law. The Forest Department, opposite party, was advised to get remedy before the Civil Court.
10. Counsel for the petitioners informed that the Commissioner, Hazaribagh, by order dated 20th July, 1999, has allowed CNT Appeal, filed by the Samiti, holding that the Samiti has purchased the raiyati land from the recorded tenant. The Commissioner, Hazaribagh, further held that the Forest Department not having acquired the land, in question, has not acquired right, title and possession over the land. A petition under Order XXXIX, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure was filed by the Divisional Forest Officer in Title Appeal No. 14 of 1999 with a prayer to restrain the Samiti and its members from making construction over the plot, in question. The said Injunction Petition was later on withdrawn from the record of Title Appeal No. 14 of 1999, without taking permission of the Court. By order dated 17th September, 1999, passed in Title Appeal No. 14 of 1999, the 1st Additional District Judge, having held that several houses already exist over the suit land and some constructions are under progress, rejected the appellant's petition for injunction. The Divisional Forest Officer , thereafter, filed Civil Revision No. 492 of 1999-R before Ranchi Bench of Patna High Court against the order dated 17th September, 1999, passed in Title Appeal No. 14 of 1999. One Misc. Case No. 10 of 1999 was also filed by one Sudesh Prasad, Secretary of the Samiti, under Order XXXIX, Rule 2-A of the Code of Civil Procedure, in which the learned Munsif, Bokaro, made observation against the officials of the Forest Department.
11. It is informed that Title Appeal No. 14 of 1999, preferred against the order, passed in the Title Suit No. 7 of 1997, having been allowed, the members of the Samiti have preferred Second Appeal No. 182 of 2002, which is pending before this Court. In the meantime, cognizance of the offence having been taken in BF Case Nos. 17 of 1999 and 32 of 1999, petitioners of Cr. MP No. 771 of 2003 and 772 of 2003 were taken into custody. Thereafter, they filed petitions for discharge, which have been rejected, as stated above.
12. It is informed that Title Appeal No. 14 of 1999 was allowed by the learned 1st Additional District Judge, Bokaro on 12th October, 2002 against which Second Appeal is pending before this Court. In the meantime, one SLP (C) No. 21304 of 2001 was preferred wherein leave was granted and the case was registered as Appeal No. 8210 of 2002. The Supreme Court by its order dated 5th December, 2002 disposed of the said appeal with a direction to the parties to maintain status quo in respect of possession, title and construction. Second Appeal No. 182 of 2002, preferred before this Court, has been admitted on the question "whether the appellate Court has committed error of law in setting aside and reversing the judgment and decree of the trial Court on irrelevant considerations ignoring the material evidence, such as, Ext. 12. The aforesaid facts have not been disputed by the counsel for the State. All this merely shows that the parties are in litigating terms and both of them are claiming their respective right, title and possession. The petitioners are claiming right and title on the basis of registered sale deeds, obtained from the raiyats, whereas the State is claiming that it is a "protected forest" and thereby land of the State.
13. In the aforesaid situation, there being genuine dispute of right and title, I hold that the criminal proceedings are not warranted in law. In fact, the State, including its Forest Department, should pursue the remedy in the suit/appeal, either pending before the Civil Court, having competent jurisdiction, or before this Court.
14. In view of the facts, stated above, and for the reasons, as shown, I set aside all the proceedings of BF Case Nos. 17 of 1999. 32 of 1999, 33 of 1999, 18 of 1999, 34 of 1999 and 29 of 1999. all pending in the Court of learned Judicial Magistrate, Bokaro, so far they relate to the petitioners of the present cases. All the Criminal Misc. Petitions Le. Cr. MP Nos. 771 of 2003, 772 of 2003, 1558 of 2003, 1559 of 2003, 1560 of 2003 and 1561 of 2003 are, accordingly, allowed with the aforesaid observations.