Jharkhand High Court
Bhim Mahato @ Bhim Lal Mahato @ Bhim Mahto vs The State Of Jharkhand on 19 September, 2023
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 1510 of 2022
Bhim Mahato @ Bhim Lal Mahato @ Bhim Mahto
.... .. ... Petitioner(s)
With
Cr. M. P. No. 1511 of 2022
Laldhari Mahato @ Laldhari Mahto .... .. ... Petitioner(s)
Versus
1.The State of Jharkhand.
2. The Forest Range Officer, Urban Commercial Range,
Dhanbad. .. ... ...Opp. Party(s)
[in Both the cases]
...........
CORAM : HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY .........
For the Petitioner(s) : Mr. Gautam Kumar, Advocate
Mr. R. C. Sahu & Ms. Savita Kumari, Advs.
For the State : Mr. Vineet Kr. Vashistha, SPP
Mr. Manoj Kr. Mishra, APP
......
08/ 19.09.2023. Heard, learned counsel for the parties.
1. Since both the cases involve common question of law and facts, as such, they are heard together and will be disposed of by common order.
2. Cr. M. P. No. 1510 of 2022 has been filed for quashing the entire criminal proceeding including the order taking cognizance dated 04.09.2019 passed by learned CJM, Dhanbad in Complaint Case No.1223 of 2017 whereby and whereunder cognizance of the offence under Section 33 of the Indian Forest Act, 1927 has been taken against the petitioner.
Cr. M. P. No. 1511 of 2022 has been filed for quashing the entire criminal proceeding including the order taking cognizance dated 04.09.2019 passed by learned CJM, Dhanbad in Complaint Case No.1224 of 2017 whereby and whereunder cognizance of the offence under Section 33 of the Indian Forest Act, 1927 has been taken against the petitioner.
3. As per the case of prosecution, the petitioner had encroached in the forest area under Thana No.155, Thana- Baliapur, Plot No.2066 and had constructed a pucca house in the forest area which was in violation of Section 30 (c) and 33 of the Indian Forest Act.
4. The order taking cognizance is assailed on the ground that petitioner has been living in the said forest area since long and the Forest Department claims the same under the forest area as Notified Forest Area vide Notification No.C/ F-17038/ 64-3346R dated 23.09.1964. The said notification is valid only for a period of 30 years in terms of Section 30(b) of the Indian Forest Act and it came into force in the year 1964. Learned 2 counsel for the petitioner(s) has placed reliance in the case of Jagdish Mehtao vs. State of Jharkhand & Ors., reported in [(2003) 2 JCR 525 (Jhr)].
5. Learned SPP /APP for the State has opposed the quashing petition. It is submitted that the in land in question is Protected Forest area notified under Section 29 of the Indian Forest Act and not under Section 30 as contended on behalf of the Petitioner. Under Section 29 there is no time frame for the validity of the notification and the said notification cannot lapse after passage of any time. In any case where Protected Forest area is declared to be notified on Government land and even after lapse of 30 years, it cannot become a private raiyati land and the same will be continued to be Government land.
6. Heard, rival submissions of both the sides. The question that arises is whether, by passage of time or even with the expiration of the period of notification, a Government Land gets converted into a private land. The plea of passage of time is taken on the basis of 30 years provided under Section 30 of the Indian Forest Act, 1927. It is significant to note that neither in the case of "reserved forest" notified under Section 20 nor in the case of "protected forest" under Section 29, the nature of land changes with passage of time. Reserved forests are notified under Section 20 which starts with the expression "The State Government may constitute any forest land or waste land which is the property of Government or over which the Government has propriety rights". Further, protected forest are notified under Section 29 which also starts with similar expression that "The State Government may, by notification in the Official Gazette, declare the provisions of the Chapter applicable to any forest land or waste land which is not included in the reserved forest but which is the property of Government, or over which the Government has propriety rights". Neither in Section 20 nor in Section 29 has any time limit been provided. Therefore, to put up a case claiming a land that it has reverted to them after a period of 30 years of notification is misconceived and misleading to the core. Authority relied upon by the petitioner will not apply as in the said case Section 30 was invalid whereas in the present case Section 29 of the Indian Forest Act is concerned.
7. The "reserved forest" under Section 5 bars accrual of forest rights and lands comprised under such notification, except by a succession or under a grant 3 or contract in writing made or entered into by or on behalf of the Government. The process of notification of Reserved Forest follows an elaborate procedure of inquiry under Section 7 regarding the existence of any right mentioned in Sections 4, 5 and 6. Where no such claim for rights is preferred under Section 6 and of the existence of which no knowledge has been acquired by the inquiry under Section 7, such rights shall be extinguished in terms of Section 9 of the Act. Section 11 is emphatic when it declares that "in the case of a claim to a right 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, the Forest Settlement Officer shall pass an order admitting or rejecting the same in whole or in part." According to Section 11(2), if such claim is admitted in whole or in part, the Forest Settlement Officer shall:-
(i) Exclude such land from the limits of the proposed forest, or
(ii) Come to an agreement with the owner thereof for the surrender of his rights, or
(iii) Proceed to acquire such land in the manner provided by the laws related to acquisition of land
8. The import of this provision is the complete exclusion of rights on the forest and save and except some limited right, such as a right of way or right of pasture, or a right to forest-produce or a water-course that too by an express order as required under Section 12, no right over the notified land is admitted or recognized after the notification. When a Forest is thus notified as reserved forest it is free from claim of any right over it.
9. The provisions related to "Protected Forests" have been provided under Chapter - 4, from Section 29-34. As stated earlier, a Government Forest land or a land over which the Government has propriety rights, is notified as a protected forest under Section 29 which does not prescribe any time limit thereof. Once a Government Land has been notified as reserved forest or protected forest, its nature does not change with the passage of time and it cannot become private raiyati land after the expiry of 30 years.
10.This brings us to the time limit under Section 30. For a clear understanding of the provisions of the Section, it is extracted herein below:-
"30. Power to issue notification reserving trees etc. - The State Government may by notification in the Official Gazette -
(a) Declare any trees or class of trees in a protected forest to be reserved from a date fixed by the notification, or
(b) Declare that any portion of such forest specified in the notification shall be closed for such terms, not exceeding 30 years, as the State Government thinks fit, and the rights of private persons, if any, over such portion shall be suspended during such term, provided that the remainder of such 4 forest be sufficient, and in a locality reasonably convenient, for the due exercise of the right suspended in the portion so closed, or
(c) Prohibit, from a date fixed as aforesaid, the quarrying of stones, or the burning of lime or charcoal, or the collection or subjection to any manufacturing process, or removal of, any forest produce in any such forest, and the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forest."
This Section contemplates three situations - firstly, where trees or a class of trees in a protected forest can be declared protected; secondly, where the State Government is empowered to close any portion of protected forest for a term not exceeding 30 years during which the rights of any private person gets suspended for the said period, and thirdly, where the State Government can prohibit the quarrying of stones, or the burning of lime or charcoal, or the collection or subjection to any manufacturing process, or removal of, any forest produce in any such forest, and the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forest.
11. The need for Section 30 is a part of forest conservation and management under which a part of protected forest can be closed or a species of tree can be reserved for the purpose of afforestation which may require the forest rights as notified under rules under Section 32 to be suspended. In order to achieve such an objective, the State Government is empowered to suspend, for any period not exceeding 30 years, the rights of private persons which exist even after the declaration of a land as protected forest. The period of 30 years specified under Section 30 contemplates that an area of a protected forest can be closed by the State Government for a maximum period of 30 years and during this period, the rights of private persons related to and associated with the use of such area gets suspended.
12. After the lapse of 30 years, neither the nature of the forest changes nor the nature of the land changes, what changes under Section 30 is the exercise of rights of the forest dwellers and the community to use the land for activities such as collection of firewoods etc. which resumes after the expiration of the aforesaid period. Therefore, it is not tenable in the eyes of law to claim title or right to possession over a Govt. land which has been declared protected forest on the ground that the nature of the land or forest has changed after the expiration of 30 years.
Accordingly, I find substance in the submission(s) advanced by learned SPP/ APP for the State that it is a Notification under Section 29 of the Indian Forest Act and it will not cease to have its force after the lapse of 30 years. In view of the prima-facie material after encroachment over forest land, I do not find any infirmity in the impugned order of taking cognizance. In the present case the notification is under Section 29 and therefore the authority relied upon by the Petitioner will have no application in the present case which deals with notification under Section 30 of the Indian Forest Act, 1927.
Both the aforesaid Cr. M. Ps. are dismissed.
(Gautam Kumar Choudhary, J.) Sandeep/Uploaded.