Jharkhand High Court
M/S. Bharat Coking Coal Limited vs The State Of Jharkhand on 14 January, 2025
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 263 of 2006
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M/s. Bharat Coking Coal Limited, a Government Company within the meaning of Section 617 of the Companies Act, having its registered office at Koyla Bhawan, P.O. Koyla Nagar, P.S. Saraidhella, District-Dhanbad, through Sri Surinderjit Singh Malhi, son of Amar Singh Malhi, General Manager, Kusunda Area, M/s BCCL, P.O. Kusunda, P.S. Kenduadih, District-Dhanbad.
... ... ... Petitioner
-Versus-
1. The State of Jharkhand.
2.Divisional Forest Officer, Dhanbad Forest Division, Dhanbad, P.O., P.S. and District Dhanbad.
3. Beat Officer, Rajganj, Dhanbad Forest Division, Dhanbad, District-Dhanbad.
.........Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Petitioner : Mr. Anoop Kr. Mehta, Advocate Mr. Manish Kumar, Advocate Mr. Pratyush, Advocate For the Respondents : Mr. Ankit Kumar, AC to GP-VI
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CAV on 02/12/2024 Pronounced on 14/01/2025 Per Sujit Narayan Prasad, J:
Prayer:
1. The instant writ petition filed under Article 226 of the Constitution of India, has been filed for the following reliefs:
(i) For issuance of an appropriate writ/order/direction upon the Respondents, specially the Respondents No.2 and 3 for restraining them from interfering in any manner with the coal mining activities being carried out by the petitioner on Plot Nos. 2420 and 2712 of Khata No.118 of Mouza-Bowakalan @ Barki Bowa in the -1- W.P.(C) No. 263 of 2006 district of Dhanbad which stood vested in the petitioner company on coming into force of the Coal Mines (Nationalisation) Act, 1973 with effect from 1/5/1973, AND
(ii). For issuance of further writ/order/direction upon the Respondents restraining them from creating any disturbance in the on-going mining work of East Busseriya colliery on the plea that the coal mining activities are being carried on over forest lands.
Brief facts of the case:
2. The petitioner is holder of coal mining lease and engaged in coal mining activities. Further the East Busseriya colliery is situated at Mouza-Bowakalan @ Barki Bowa in the district of Dhanbad.
3. It has been stated that Plot No.2420 of Khata No. 118 has been recorded as Gair Abad Malik land in the Cadestral Survey Record of Rights. The said lands have been classified as Puratan Patit lands and the total area of the said Plot is 17.66 acres. Similarly, Plot No.2712 of Khata No.118 is also recorded as Gair Abad Malik land and the total area is 17.81acres. Accordingly, the total area falling under two these plots is 35.47 acres.
4. The aforesaid lands being Plot No.2420 and 2712 stands recorded under Khewat No.2 held by Rani Subhadra Kumari, the superior landlord.
5. The superior landlord, Rani Subhadra Kumari by a permanent lease being Mokrari Patta Deed No.2535 dated 10/11/1924 granted permanent lease for surface right as well as Zamindari (Intermediary) right i.e. right to collect rent -2- W.P.(C) No. 263 of 2006 also for a period of 999 years in respect of 881 Bighas in favour of one Prabhulal Pranjivan, the Ex-colliery owner.
6. In the year 1933, Raja Shiva Prasad Singh of Jharia Raj Estate who is the successor/legal heir of the said Rani Subhadra Kumari Devi, by a registered Deed No.3736 dated 14/11/1933 granted coal mining right/lease for a period of 999 years in respect of 1050 Bighas of coal land in favour of Maya Shanker Bhagwanji, son of Bhagwanji and Jatashanker Dossa.
7. Amongst the lessees of Deed No.2535 dated 10/11/1924 and Deed No. 3736 dated 14/11/1933, a partition of the said 1050 Bighas of land was carried out vide registered Partition Deed No.3970 dated 23/9/1937. As per the said Deed, 300 Bighas out of the said 1050 Bighas of land was allotted to one Mukta Bait, wife of late Maya Shanker Bhagwanji and Prabhulal Pranjivan son of Prajjivan Harishanker and remining 750 Bighas were allotted to Jatashankar Dossa, son of Late Dossa and others.
8. By virtue of subsequent partition through various partition deeds as well as sale Deeds executed in favour of Jatashanker Dossa, he became the absolute owner in respect of 750 Bighas of coal land inclusive of related surface lands.
9. The said Jatashanker Dossa vide registered Indenture Deed No. 9053 dated 13/9/1943 sold and transferred the said 750 Bighas land covered by Deed of the year 1924 and Deed of the year 1933 in favour of East Busseriya Colliery Company Limited. The said East Busseriya colliery Company Limited carried out coal mining business in the said 750 Bighas of land inclusive of lands falling under Plot No.2420 and 2712 referred to hereinabove.
-3- W.P.(C) No. 263 of 200610. The aforesaid coal mining operations included extraction of coal from underground coal mines and establishing Dhowras/staff quarters, Magazine house, inclines and other infrastructures etc.
11. On coming into force of the Bihar Land Reforsms Act, 1950 the Intermediary interest of the Ex-Zamindari vested in the State Government. However, in view of the provisions contained in Sections 9 and 10 of the said Act, the interest of mining lessee was saved from vesting and the same remained with the mining lessee. Hence, Plot No. 2420 and 2712 apart from other plots falling under 750 Bighas of lands were saved from vesting.
12. The Ex-colliery owner carried out underground coal mining operations in respect to Plot No.2420 and 2712, a portion of land has goafed and subsided due to de-pillaring during the pre-nationalization period after getting permission for de-pillaring by caving method from the Director General of Mines Safety.
13. The aforesaid fact would be evident from the permission granted by the Director General of Mines Safety contained in his letter No.5365 dated 1/12/1967 addressed to M/s. East Busseriya Colliery Company (P) Limited. A portion of Plot No.2712 was also used as coal stock yard much prior to nationalization and still as on date, the stock yard exists. Besides above, a portion of the Plot No.2420 has also been worked and quarried by Open cast method by the erstwhile colliery owner during pre-nationalization period. Further, over a portion of Plot No.2712 pucca road is passing which is used for transportation of coal apart from other public use.
14. The entire surface land including the lands of related Plot No.2420 and 2712 covering the said 750 Bighas of land -4- W.P.(C) No. 263 of 2006 was in the possession of the erstwhile colliery owner at the time of nationalization.
15. It is the case of the petitioner that the right, title and interest in relation to the coal mine namely East Busseriya colliery Company(R) Limited stood vested absolutely and free from all encumbrances in view of the provisions contained in Section-3 of the Coal Mines (Nationalization) Act, 1973. In Schedule-1 appended to the Act 1973, East Busseriya colliery Company(R) Limited figures at serial No.84.
16. In respect to the surface rights, the right of the petitioner in respect to the said two plots have been duly recognized by the then State of Bihar and the State of Bihar accepted rent and issued rent receipts.
17. Subsequently, payment of land rent in respect to aforesaid plot of lands were stopped in the light of an opinion given by the Ministry of Coal, Government of India.
18. It is further case of the petitioner that out of the total area of 35.47 acres of land of Plot Nos.2420 and 2712, land measuring 28.12 acres have been recorded in the Revisional Survey khatiyan(not final) in favour of M/s. Bharat Coking Coal Limited. Remaining portion of the said land has been recorded in the name of Government of Bihar with remakrs 'Awaidh Dakhal' by certain individuals while 0.56 acres out of the balance has been recorded as Rasta meant for passage for general public for transportation. In the remarks column of the R.S. Khatiyan (not final), there is no mention of any forest/jungle-jhari etc. against these lands. On the contrary, there is mention of Dhowras/Goaf/House/Football ground etc.
19. The mining operations have been carried out by the petitioner Coal Company around and beneath the plots -5- W.P.(C) No. 263 of 2006 peacefully and without any hindrance from the Forest Department even after the nationalization until December, 2005. Even in the year 2001, permission has been granted under the Coal Mines Regulation, 1957 in favour of the Agent, East Busseriya colliery to work different coal seams by mechanized open cast method located in and around the aforesaid two plots of lands as would be evident from the letter contained in Memo No.2117-19 dated 7/9/2001 of the Director Mines Safety, Dhanbad, Region I addressed to the Agent East Busseriya colliery.
20. It has further been stated that working by mechanized Open cast method was allowed by the Director General of Mines Safety, Dhanbad again in the year 2005 vide letter dated 25/2/2005 in respect to the lands in question alongwith others being Plot Nos. 2420 and 2712. In the light of the permission granted, the petitioner has carried out coal mining operations.
21. The petitioner due to shortage of mining machineries has been engaging contractors by entering into contracts for hiring of Heavy Earth Moving Machineries (H.E.M.M.). Under the said contract, the petitioner Company takes on hire the machineries for carrying out mining operations for removal of over burden and extraction of coal.
22. It is the case of the petitioner that, the representative of Dhansar Engineering Company (P) Limited vide his letter dated 29/12/2005 addressed to the petitioner has informed that the entire coal mining work being carried in East Busseriya colliery has been stopped on the basis of oral directions issued by the Forest Department on and from 27/12/2005 without assigning any reason or issuing any notice in writing to the petitioner.
-6- W.P.(C) No. 263 of 200623. Consequently, the officials of the petitioner Company have met the Respondent No.2 personally and appraised him of the entire aforesaid facts including the fact that coal mining operations have been carried out on the lands in question prior to nationalization and even after nationalization without any hindrance whatsoever from the Forest Department on the basis of the permission granted by the D.G.M.S.
24. The respondents are not at all prepared to see any of the documents being relied upon by the petitioner and are adamant in closing down the entire mining operations being carried out in Plot Nos.2420, 2712 of Khata No. 118 of Mouza-Bowalkalan @ Barki Bowa being Revenue P.S.No.228, district-Dhanbad and have also threatened the petitioner and their representatives for launching criminal prosecution against them.
25. It is the case of the petitioner that on account of the aforesaid act on the part of the Respondents, more than 700 workers who are deployed in East Busseriya colliery are being affected as working of the coal mine has been paralyzed on account of the interference on the part of the Respondents and due to the inaction on the part of the Respondents No.2 and 3, entire coal mining activities has come to a stand-still causing loss of revenue apart from royalty to the State Government.
26. Hence the instant writ has been filed.
Submission on behalf of petitioner-BCCL:
27. Learned counsel for the petitioner -BCCL has assailed the said action of the respondents-authorities, by taking following grounds:
-7- W.P.(C) No. 263 of 2006I. It has been submitted that the respondent on the basis of verbal orders cannot stop the coal mining activities being carried out by the petitioner or its agents over said plot in the view of the fact that petitioners carrying out the coal mining activities over the plot in question prior to nationalization of the coal mines through the Ex-colliery owner.
II. It has further been submitted that the said land was recorded in the Cedestral Survey Records of Rights as Puratan Patit in the classification column and in the possession of the mining lessee namely the Ex-colliery owner, the same cannot be declared as a forest land in terms of Section 29 of the Indian Forest Act.
III. Further, the coal mining lease held by Ex-Colliery owner were saved from vesting under the provisions of section 9 and 10 of the Bihar Land Reforms Act, 1950, cannot be declared to be a forest land without compliance of provision of Section 29 of the Indian Forest Act.
IV.Further, the respondents cannot restrain the petitioner from carrying out coal mining activities without even issuing a notice or passing an order to the effect in writing.
V. In view of the arbitrary and whimsical action on the part of the the Respondents, more than 700 workers who are deployed in East Busseriya colliery are being affected as working of the coal mine has been paralyzed on account of the interference on the part of the Respondents and due to the inaction on the part of the Respondents No.2 and 3, entire coal mining activities -8- W.P.(C) No. 263 of 2006 has come to a stand-still causing loss of revenue apart from royalty to the State Government.
VI.Submission has been made that from the aforesaid factual aspect, it is evident that the entire said land has been vested with the petitioner upon coming into force of the Coking Coal Mines Nationalization Act, therefore, the land in question cannot be said to be forest land in any manner.
VII. It has been submitted that upon insistence of the authorities the petitioner as well as the forest authorities conducted a joint inspection and report was prepared upon such inspection, only four trees were found which clearly reveals that the mining operation over the said Mauja is being carried out since long.
VIII. Submission has been made that the petitioner- BCCL after nationalization of Coal Mines is carrying out the mining operation without any objection from any corner but all of a sudden in the year 2005 the petitioner-BCCL has been restrained by the respondents from carrying out the mining and other activities over said plot.
IX. Being aggrieved, the petitioner approached this Court by filing the instant writ petition being WRIT PETITIONER© No.263 of 2006 in which vide order dated 25.01.2006 interim order of stay was passed by this Court.
X. The ground has been taken in assailing such decision of the State authority of the forest department that the verbal order passed by the respondent is per se illegal on the basis of the fact that Section 29(3) does not confer any power upon the State to pass restrainment -9- W.P.(C) No. 263 of 2006 order rather Section 29(3) confers power upon the State to carry out enquiry to be conducted that by the forest authority and till the submission of the enquiry report the existing right of the party will subsist.
XI. It has been contended that the notification under the proviso to Section 29(3) of the Forest Act, 1927 is of year1968, which itself suggests that the enquiry is to be conducted by the forest authority and till the enquiry report is submitted, the right of the parties is to be maintained. But contrary to the said provision and without bringing any fact-finding report, the order of restrainment, has been verbally ordered by the respondent which is absolutely illegal and improper.
XII.The further ground has been taken that after coming into effect of Coal Mines Nationalisation Act, 1973, the land which was being used for the purpose of carrying out the mining operation, will be protected under the policy as stipulated under Coal Mines Nationalisation Act, 1973 and by virtue of that since mining operation was carried out, hence, in that view of the matter there cannot be any restrainment order in view of Section 29(3) of the Forest Act, 1927.
28. Learned counsel for the petitioner, based upon the aforesaid ground has submitted that the verbal order of restrainment given by the respondent no.2 suffers from error and are not sustainable in the eyes of law.
Submission on behalf of respondents-State: -
29. Learned counsel for the respondents-State has defended the impugned orders by placing reliance upon the averments made in the counter affidavit:
- 10 - W.P.(C) No. 263 of 2006I. It has been stated that a total area of 85.39 acres in Mouza Bawa Kalan has been notified as 'Protected Forest' under Section 29 of the Indian Forest Act, 1927 vide notification dated 01.11.1968. As per provision laid down under Section 29 of the Indian Forest Act, 1927 rights of Government and of private persons in or over the forest land were enquired into by the Forest Settlement Officer, appointed for the purpose, who after due process demarcated the forest boundary on the map in green line and recorded a certificate to that effect on the map itself.
II. It has been submitted that prior to the notification under the Indian Forest Act, the said land was notified as Private Protected Forest under Section 14 of the Bihar Private Forest Act, 1946.
III.It has been submitted by referring to Bihar Private Forest Act, whereby and whereunder all the private forests have been put under the control of the erstwhile State of Bihar and it is on the basis of that notification has been issued in view of provision of Section 29 of the Indian Forest Act, 1927 on 01.11.1968.
IV. The contention has been raised that since by virtue of Bihar Private Forest Act, the private forest land is also to be taken care of and hence all the forests which were within the exclusive title of the private raiyats or the private parties, the same is also to be protected under the object and intent of the said Act and it is in these circumstances and by taking aid of Section 29(3) of the Indian Forest Act, 1927, the notification has been issued on 01.11.1968 declaring the area to be protected forest and in that view of the matter, the restrainment - 11 - W.P.(C) No. 263 of 2006 has been ordered since no permission was sought for by the petitioner from the authority concerned particularly from the Forest Department of to carry out the mining operation in that area.
V. Learned counsel for the State has also relied upon the provisions of Bihar Land Reforms Act, 1950 wherein also it has been provided that the lands, which are of the land lords, are vested in the State and in that view of the matter, as per the object and intent of Bihar Land Reforms Act, 1950, the land in question is also said to be vested with the State and in that view of the matter it is the mandatory requirement by the petitioner to seek permission to carry out the mining operation. But no such permission was sought for as such restrainment was ordered, which suffers from no error.
30. The learned State counsel, based upon the aforesaid ground, has submitted that order since have been issued on consideration of the ground as referred hereinabove, as such the same are not fit to be interfered with.
Analysis:
31. We have heard learned counsel for the parties, gone across the pleading made in the writ petition as also in the counter affidavits and the relevant provisions of law.
32. In the backdrop of the aforesaid facts this Court is of the view that following issues are required to be answered for proper adjudication of the present lis:
(I) Whether Bihar Land Reform Act, 1950 will be applicable in the factual aspects of the instant case?- 12 - W.P.(C) No. 263 of 2006
(II) Whether by virtue of Bihar Private Forest Act since the State has taken decision to bring the private forests also under the fold of protected area, hence the provision of Section 29 of the Indian Forest Act, 1927 will be applicable herein?
(III) Whether the private forest is to be brought under the fold of proviso to sub-section (3) to Section 29 of the Indian Forest Act, 1927?
(IV) Whether the mining operation as being carried out by virtue of Coal Nationalisation Act, 1973 in particular area, then the authority concerned without determining and without getting the absolute report in view of provision of section 29(3) of the Act, 1927, can pass such order of restrainment.
33. Since all the issues are interlinked, the same are being taken up together.
34. This Court, before delving upon the issues, considers it fit and proper to reiterated the factual aspects and relevant provisions of law, which are necessary for deciding the issues involved herein.
35. The petitioner is holder of coal mining lease and engaged in coal mining activities and the East Busseriya colliery is situated at Mouza-Bowakalan @ Barki Bowa in the district of Dhanbad. It has been stated that Plot No.2420 of Khata No. 118 has been recorded as Gair Abad Malik land in the Cadestral Survey Record of Rights and, the total area falling under two these plots is 35.47 acres.
36. It has been pleaded that the aforesaid lands being Plot No.2420 and 2712 stands recorded under Khewat No.2 held by Rani Subhadra Kumari, the superior landlord. The superior landlord, Rani Subhadra Kumari by a permanent - 13 - W.P.(C) No. 263 of 2006 lease being Mokrari Patta Deed No.2535 dated 10/11/1924 granted permanent lease for surface right as well as Zamindari (Intermediary) right for a period of 999 years in respect of 881 Bighas in favour of one Prabhulal Pranjivan, the Ex-colliery owner.
37. In the year 1933, Raja Shiva Prasad Singh of Jharia Raj Estate who is the successor/legal heir of the said Rani Subhadra Kumari Devi, by a registered Deed No.3736 dated 14/11/1933 granted coal mining right/lease for a period of 999 years in respect of 1050 Bighas of coal land in favour of Maya Shanker Bhagwanji, son of Bhagwanji and Jatashanker Dossa.
38. Amongst the lessees of Deed No.2535 dated 10/11/1924 and Deed No. 3736 dated 14/11/1933, a partition of the said 1050 Bighas of land was carried out vide registered Partition Deed No.3970 dated 23/9/1937. By virtue of subsequent partition through various partition deeds as well as sale Deeds executed in favour of Jatashanker Dossa, he became the absolute owner in respect of 750 Bighas of coal land inclusive of related surface lands.
39. It has been pleaded that the said Jatashanker Dossa vide registered Indenture Deed No. 9053 dated 13/9/1943 sold and transferred the said 750 Bighas land in favour of East Busseriya Colliery Company Limited. The said East Busseriya colliery Company Limited carried out coal mining business in the said 750 Bighas of land inclusive of lands falling under Plot No.2420 and 2712 referred to hereinabove.
40. It is the case of the petitioner that on coming into force of the Bihar Land Reforms Act, 1950 the Intermediary interest of the Ex-Zamindari vested in the State Government. However, in view of the provisions contained in Sections 9 - 14 - W.P.(C) No. 263 of 2006 and 10 of the said Act, the interest of mining lessee was saved from vesting and the same remained with the mining lessee. Hence, Plot No. 2420 and 2712 apart from other plots falling under 750 Bighas of lands were saved from vesting.
41. A portion of Plot No.2712 was also used as coal stock yard much prior to nationalization and still as on date, the stock yard exists. Besides above, a portion of the Plot No.2420 has also been worked and quarried by Open cast method by the erstwhile colliery owner during pre- nationalization period. The entire surface land including the lands of related Plot No.2420 and 2712 covering the said 750 Bighas of land was in the possession of the erstwhile colliery owner at the time of nationalization.
42. It is the case of the petitioner that the right, title and interest in relation to the coal mine namely East Busseriya colliery Company(R) Limited stood vested absolutely and free from all encumbrances in view of the provisions contained in Section-3 of the Coal Mines (Nationalisation) Act, 1973. In Schedule-1 appended to the Act 1973, East Busseriya colliery Company(R) Limited figures at serial No.84.
43. In respect to the surface rights, the right of the petitioner in respect to the said two plots have been duly recognized by the then State of Bihar and the State of Bihar accepted rent and issued rent receipts. Subsequently, payment of land rent in respect to aforesaid plot of lands were stopped in the light of an opinion information given by the Ministry of Coal, Government of India.
44. It is further case of the petitioner that out of the total area of 35.47 acres of land of Plot Nos.2420 and 2712, land measuring 28.12 acres have been recorded in the Revisional Survey khatiyan(not final) in favour of M/s. Bharat Coking - 15 - W.P.(C) No. 263 of 2006 Coal Limited. Remaining portion of the said land has been recorded in the name of Government of Bihar with remakrs 'Awaidh Dakhal' by certain individuals while 0.56 acres out of the balance has been recorded as Rasta meant for passage for general public for transportation. In the remarks column of the R.S. Khatiyan (not final), there is no mention of any forest/jungle-jhari etc. against these lands. On the contrary, there is mention of Dhowras/Goaf/House/Football ground etc.
45. It has further been stated that working by mechanized Open cast method was allowed by the Director General of Mines Safety, Dhanbad again in the year 2005 vide letter dated 25/2/2005 in respect to the lands in question alongwith others being Plot Nos. 2420 and 2712. In the light of the permission granted, the petitioner has carried out coal mining operations. without any hindrance from the Forest Department until December, 2005.
46. It is the case of the petitioner that at sudden the entire coal mining work being carried in East Busseriya colliery has been stopped on the basis of oral directions issued by the Forest Department on and from 27/12/2005 without assigning any reason or issuing any notice in writing to the petitioner.
47. Consequently, the officials of the petitioner Company have met the Respondent No.2 personally and appraised him of the entire aforesaid facts including the fact that coal mining operations have been carried out on the lands in question prior to nationalization and even after nationalization without any hindrance whatsoever from the Forest Department on the basis of the permission granted by the D.G.M.S. - 16 - W.P.(C) No. 263 of 2006
48. However, the grievances of the petitioner have not been redressed by the authority concerned and further the petitioner has been threatened by the authority concerned and their representatives for launching criminal prosecution against them. Hence the instant writ has been filed.
49. The land in question is shown to be in possession of raiyats since the year 1924 and 1933. It is evident from the factual aspect as mentioned hereinabove that the the superior landlord, Rani Subhadra Kumari by a permanent lease being Mokrari Patta Deed No.2535 dated 10/11/1924 granted permanent lease for surface right as well as Zamindari (Intermediary) right for a period of 999 years in respect of 881 Bighas in favour of one Prabhulal Pranjivan, the Ex-colliery owner.
50. In reference to that it needs to refer herein that since in the Bihar Land Reforms Act, 1950 provision has been made by conferring power upon the Collector to conduct an enquiry if any land has been settled by the ex landlord in order to frustrate the provisions of Bihar Land Reforms Act, 1950 by settling it on or after 01.01.1946 for the purpose of annulment of the transfer subject to approval by the State Government.
51. Therefore, the very object and intent of the Bihar Land Reforms Act, 1950 needs to refer herein along with the provisions of Section 4(h) and (hh), which reads as under:
"4(h) The Collector shall have power to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof, [* * *] [Substituted by Act 20 of 1954.] and if he is satisfied that such transfer was made [at any time after the first day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State or obtaining higher compensation - 17 - W.P.(C) No. 263 of 2006 thereunder the Collector may, after giving reasonable notice to the parties concerned to appear and be heard [* * *] [Inserted by Act 16 of 1959.] annul such transfer, dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable:] [Provided that an appeal against an order of the Collector under this clause if preferred within sixty days of such order, shall lie to the prescribed authority not below the rank of the Collector of a district who shall dispose of the same according to the prescribed procedure:] [Inserted by Act 16 of 1959.] Provided further that no order annulling a transfer shall take effect nor shall possession be taken in pursuance of it unless such an order has been confirmed by the State Government.] 4(hh) The Collector shall have power to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof, [* * *] and if he is satisfied that such transfer was made [at any time after the first day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State or obtaining higher compensation thereunder the Collector may, after giving reasonable notice to the parties concerned to appear and be heard [* * *] annul such transfer, dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable:] [Provided that an appeal against an order of the Collector under this clause if preferred within sixty days of such order, shall lie to the prescribed authority not below the rank of the Collector of a district who shall dispose of the same according to the prescribed procedure:]
52. It is not in dispute that Bihar Land Reforms Act, 1950 has been enacted to dispense with the intermediary system so that the rent be directly deposited in the State exchequer by the raiyats and not to the land lord, the intermediaries.
53. However, the vesting of the land is to be followed after making payment of compensation in favour of raiyats on the basis of rent receipts issued by the landlords.
54. The legislation contained a provision as under Section 4- h, to achieve the object and intent of the Bihar Land Reforms - 18 - W.P.(C) No. 263 of 2006 Act, 1950 so that there may not be any settlement of land after coming into effect of Bihar Land Reforms Act, 1950 and if the settlement has been made post 01.01.1946, then the inquiry in terms of provisions of Section 4(h) is to be done for the purpose of providing reasonable opportunity of hearing.
55. The reference of Bihar Land Reforms Act, 1950 is made herein since one of the arguments of the respondent-State is that in view of the provisions of Bihar Land Reforms Act, 1950, the land which is being used for the purpose of mining operation will be said to be vested in the State therefore, permission from the authority concerned is mandatory.
56. The provision of Bihar Private Forest Act is required to be discussed herein, since the same has been taken as a ground to inter-link the conduct of the petitioner by way of conferment of power upon it to take action in pursuance to provisions of Bihar Land Reforms Act, 1950 as also the relevant provisions of the Indian Forest Act, 1927 in particular Section 29(3) thereof.
57. The Bihar Private Forest Act was enacted for the purpose of taking care of the private forest area of the erstwhile State of Bihar in the pre-independence period by virtue of Sections 14 and 15 (3) of the said Act. Under section 14 of the said Act, it is stipulated that whenever it is proposed by the [State]Government to constitute any private forest, a private protected forest, the [State]Government shall issue a notification declaring that it is proposed to constitute such forest a private protected forest.
58. Further under Section 15 of the said Act it is stipulated that the Collector shall in the prescribed manner hear any objection presented under clause (c) of Section 14 and shall pass an order dismissing such objection, or directing that the - 19 - W.P.(C) No. 263 of 2006 proposal to constitute the said forest 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.
59. The provisions of the Bihar Private Forests Act, in respect of private protected forests, are contained in Chapter II of the Act. The scheme of these provisions is that the State Government on being satisfied that it is necessary in the public interest to apply the provisions of the chapter to any private forest, may constitute such forest a protected forest in the manner laid down; the first step that has to be taken is the issue of a notification under Section 14 declaring that it is proposed to constitute a forest a private protected forest and calling for objections of all landlords whose interests are likely to be affected. The hearing of objections is provided for in Section 15, sub-section 3 of which section further provides that if no objection is presented or when objection is so presented and finally disposed of the Government may issue a notification declaring its decision to constitute the area a private forest and appointing an officer "to inquire into and determine the existence, nature and extent of any rights other than landlord's rights, alleged to exist in favour of any person in or over any land in the forest".
60. Section 16 provides that on the issue of such a notification under sub-section 3 of Section 15 the Forest Settlement Officer shall publish a proclamation fixing a period of not less than three months from the date of such proclamation for claims to be made by all persons as regards rights other than landlord's rights.
61. Section 17 empowers the Forest Settlement Officer to enquire into all claims preferred in response to the - 20 - W.P.(C) No. 263 of 2006 notification and also into the existence of any rights mentioned in sub-section 3 of Section 15 and not claimed under Section 16.
62. Section 22 of this Chapter deals with the procedure for dealing with claims of forest contractors and grantees. Section 23 provides that in the case of 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 water course, the Forest Settlement Officer shall pass an order admitting or rejecting the same in whole or in part subject to the provisions of Sections 25 and 26.
63. Section 27 gives a right of appeal to any person who has made a claim under Section 16 or Section 22 against the order passed by the Forest Settlement Officer under Sections 22, 23, 24 or 26. Section 30 provides for the final action to be taken by the Government in the matter of constituting a private protected forest.
64. It requires to refer herein that the Hon'ble Apex Court in the case of State of Bihar and Ors. Vs. Lt. Col. K.S.R. Swami 1961 SCC OnLine SC 351 has held that the notification under Section 14 is not intended to amount to a final constitution of the private forest as a private protected forest. The notification under the proviso is to be made only "pending the completion of the said enquiries, procedure and appeals". Quite clearly, these enquiries, procedure and appeals are not stopped by the declaration under the proviso. For ready reference the relevant paragraph of the aforesaid Judgment is being quoted as under:
"9.It is abundantly clear that the notification under the proviso is not intended to amount to a final constitution of the private forest as a private protected forest. The notification under the proviso is to be made only "pending the completion of the said enquiries, procedure and - 21 - W.P.(C) No. 263 of 2006 appeals". Quite clearly, these enquiries, procedure and appeals are not stopped by the declaration under the proviso. They have to be completed and it is only after their completion that a notification can be made by the Government under the main part of the section. On a reasonable reading of the section it is therefore abundantly clear that even where the Government thinks fit to make a declaration under the proviso, this will have effect only so long as the period fixed under Section 16 for preferring claims (i) has not expired; (ii) claims under Sections 16 and 22 have not been disposed of; (iii) the periods limited by Section 27 for appealing from the orders passed in respect of those claims have not elapsed and (iv) all appeals preferred against such orders have been disposed of."
10. Turning now to Section 19 of this Chapter we find it laying down that "rights (other than landlord's rights) in respect of which no claim has been preferred under Section 16 and of the existence of which no knowledge has been acquired by enquiry under Section 17, shall be extinguished, unless, before the notification under Section 30 is published, the person claiming them satisfies the Forest Settlement Officer that he had sufficient cause for not preferring such claim within the period fixed under Section 16"
65. It needs to refer herein that The Forest Act, 1927 is a pre-constitutional legislation enacted by the Indian Legislature as per Section 63 of the Government of India Act, 1915. The 1927 Act was the law enforced in the territory of India immediately before the commencement of the Constitution and by virtue of Article 372 of the Constitution of India, the 1927 Act continues in force until altered or repealed by a competent legislation. The 1927 Act was enacted to consolidate the law relating to forests, the transit of forest produces and the duty leviable on timber and other forest produce.
66. Relevant provision of the said statute is provided under Section 29, which is having three sub provisions. Relevant herein is sub-section 3 thereof, which is being referred herein:
"29. Protected forests.--(1) The 1 [State Government] may, by notification in the [Official Gazette], declare the provisions of this Chapter applicable to any forest-land or - 22 - W.P.(C) No. 263 of 2006 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 1 [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."
67. It is evident from the provision of Section 29 thereof that the State Government may, by notification in the Official Gazette, declare the provisions 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. Further, it has been provided that the forest-land and waste-lands comprised in any such notification shall be called a "protected forest".
68. Thus, it is evident that Sub-section (1) of Section 29 permits the State Government to issue 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 - 23 - W.P.(C) No. 263 of 2006 forest land comprised in any such notification is called a 'protected forest'.
69. Further, it is settled position of law that before Section 29(1) by the State Government, it must be shown that the requirements of that provision are satisfied.
70. Sub-Section 3 of Section 29 thereof says that 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.
71. The said 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. Further, 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.
72. The Section 29(3) particularly its proviso whereby power has been conferred upon the State that, if, in the case of any forest-land or waste-land, the State Government thinks that - 24 - W.P.(C) No. 263 of 2006 such inquiry and record are necessary, but that 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.
73. Now, adverting to the factual aspect of the present case, herein it is admitted fact that the land was in possession of the private parties/raiyats since 1943.
74. The relevance of the year is having bearing herein in order to consider the argument advanced on behalf of the State with respect to the applicability of the provisions of Bihar Land Reforms Act, 1950.
75. The applicability of Bihar Land Reforms Act, 1950 is to be considered on the basis of power, which is to be exercised for the purpose of vesting of the land, which is in terms of the provisions of Section 4(h) of the Bihar Land Reforms Act, 1950.
76. It is evident from the provisions of Section 4(h) that the Collector shall have power to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof, and if he is satisfied that such transfer was made at any time after the first day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State or obtaining higher compensation thereunder the Collector may, after giving reasonable notice to the parties concerned to appear and be heard annul such transfer, dispossess the person claiming under it and take possession - 25 - W.P.(C) No. 263 of 2006 of such property on such terms as may appear to the Collector to be fair and equitable.
77. Here, it appears that Jatashanker Dossa vide registered Indenture Deed No. 9053 dated 13/9/1943 sold and transferred the said 750 Bighas land in favour of East Busseriya Colliery Company Limited.
78. Hence, this Court is not hesitant in coming to the conclusion that it is pre cut-off date i.e., 01.01.1946, therefore, the provision of Section 4(h) will not be applicable in the facts and circumstances of the present case.
79. The second argument which has been advanced on behalf of State that prior to the notification under the Indian Forest Act, the said land in Mouza Bowakalan was also notified as private forest under Section 14 of Bihar Private Forest Act, vide notification no. 5398 dated 22.5.1947 and the bearing of Section 29(3) of the Indian Forest Act, 1927 will be there and that is the reason the verbal order of restrainment passed by the respondent has come since the area has been declared to be protected forest.
80. We have already referred that of notification of the year 1947, which is for the purpose of taking care of the private forest by the erstwhile State of Bihar in the pre-independence period.
81. The purpose of coming out with the said notification appears to be that under the Indian Forest Act, 1927 which is also a pre-independence statutory provision, the forest land is only the subject matter.
82. Learned counsel for the State, therefore, has tried to impress upon the Court by virtue of notification dated 22.05.1947 since the State of Bihar has taken decision to bring the private forests also under the fold of protected area, - 26 - W.P.(C) No. 263 of 2006 hence the provision of Section 29 of the Indian Forest Act, 1927 will apply.
83. This Court is of the view that admittedly the erstwhile State of Bihar, in the pre-independence period, has come out with notification to take care of the private forest land.
84. But it is admitted position that under the provision of 29(3) of the Indian Forest Act, 1927, no amendment has been carried out in that respect.
85. The question, therefore, would be that merely because the State of Bihar has come out with a notification in the year 1947, will such notification amount to an addition to the statutory provision as contained under Section 29(3) of the Indian Forest Act, 1927.
86. Herein, it is not in dispute that Indian Forest Act, 1927 is the Central Legislation, although of pre-independence period, but constitutional validity has been accepted under the saving clause as provided under the Constitution of India.
87. The aforesaid fact cannot be disputed since even as per the case of the State, the said verbal restrainment order is based upon the notification issued under Section 29(3) of the Indian Forest Act, 1927.
88. Further, the law is well settled that there cannot be any insertion by the State in the Central Legislation particularly the legislation if has been deemed to be assented earlier by the Central Government.
89. Herein, the reference of the mandate of Article 254 of Constitution of India needs to be referred, which reads as under:
"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.--- 27 - W.P.(C) No. 263 of 2006
(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State 1 *** with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."
90. It is evident from the provision of Article 254 that binding effect is to be considered in the light of Article 254 of the Constitution of India. If the legislation has been assented by the President, then the same cannot be given go by or allowed to be prevailed upon by any legislation formulated by the State even assented by the Governor, which is evident from Article 254 (1) of the Constitution of India.
91. As per mandate of Article 254(1) if any provision of law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by - 28 - W.P.(C) No. 263 of 2006 the Legislature of the State shall, to the extent of the repugnancy, be void.
92. While on the other hand, as per stipulation prescribed in Article 254(2) a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in the State, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of M. Karunanidhi v. Union of India and Anr., (1979) 3 SCC 431, wherein, at paragraph-8, 24 & 25, it has been held as under:--
"8. It would be seen that so far as clause (1) of Article 254 is concerned it clearly lays down that where there is a direct collision between a provision of a law made by the State and that made by Parliament with respect to one of the matters enumerated in the Concurrent List, then, subject to the pro-visions of clause (2), the State law would be void to the extent of the repugnancy. This naturally means that where both the State and Parliament occupy the field contemplated by the Concurrent List then the Act passed by Parliament being prior in point of time will prevail and consequently the State Act will have to yield to the Central Act. In fact, the scheme of the Constitution is a scientific and equitable distribution of legislative powers between Parliament and the State Legislatures. First, regarding the matters contained in List I, i.e. the Union List to the Seventh Schedule, Parliament alone is empowered to legislate and the State Legislatures have no authority to make any law in respect of the Entries contained in List I. Secondly, so far as the Concurrent List is concerned, both Parliament and the State Legislatures are entitled to legislate in regard to any of the Entries appearing therein, but that is subject to the condition laid down by Article 254(1) discussed above. Thirdly, so far as the matters in List II, i.e. the State List are concerned, the State Legislatures alone are competent to legislate on them and only under certain conditions Parliament can do so. It is, therefore, obvious that in such matters repugnancy may result from the following circumstances:- 29 - W.P.(C) No. 263 of 2006
1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.
2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254.
3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.
4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254.
So far as the present State Act is concerned we are called upon to consider the various shades of the constitutional validity of the same under Article 254(2) of the Constitution.
24. It is well settled that the presumption is always in favour of the constitutionality of a statute and the onus lies on the person assailing the Act to prove that it is unconstitutional. Prima facie, there does not appear to us to be any inconsistency between the State Act and the Central Acts. Before any repugnancy can arise, the following conditions must be satisfied:
1. That there is a clear and direct inconsistency between the Central Act and the State Act.
2. That such an inconsistency is absolutely irreconcilable.
3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.
25. In Colin Howard's Australian Federal Constitutional - 30 - W.P.(C) No. 263 of 2006 Law, 2nd Edn. the author while describing the nature of inconsistency between the two enactments observed as follows:
"An obvious inconsistency arises when the two enactments produce different legal results when applied to the same facts."
93. Further, the similar view has been taken by the Hon'ble Apex Court in the case of Govt. of A.P. and Anr. vs. J.B. Educational Society and Anr., (2005) 3 SCC 212 wherein, at paragraph-12, it has been held as under:--
"12. Thus, the question of repugnancy between the parliamentary legislation and the State legislation can arise in two ways. First, where the legislations, though enacted with respect to matters in their allotted sphere, overlap and conflict. Second, where the two legislations are with respect to matters in the Concurrent List and there is a conflict. In both the situations, parliamentary legislation will predominate, in the first, by virtue of the non obstante clause in Article 246(1), in the second, by reason of Article 254(1). Clause (2) of Article 254 deals with a situation where the State legislation having been reserved and having obtained President's assent, prevails in that State; this again is subject to the proviso that Parliament can again bring a legislation to override even such State legislation."
94. Further, the Constitution Bench of the Hon'ble Apex Court has reiterated the same view in the Judgment rendered in the case of State of Kerala and Ors. vs. Mar Appraem Kuri Co. Ltd. and Anr., (2012) 7 SCC 106, wherein, it has been held at paragraph-65 which reads as under:--
"65. Applying the above tests to the facts of the present case, on the enactment of the (Central) Chit Funds Act, 1982 on 19-8-1982, intending to occupy the entire field of chits under Entry 7 of List III, the State Legislature was denuded of its power to enact the Kerala Finance Act 7 of 2002. However, as held in numerous decisions of this Court, a law enacted by the State Legislature on a topic in the Concurrent List which is inconsistent with and repugnant to the law made by Parliament can be protected by obtaining the assent of the President under Article 254(2) and that the said assent would enable the State law to prevail in the State and override the provisions of the Central Act in its applicability to that State only."
95. Likewise, the Hon'ble Apex Court in the case of K.A. - 31 - W.P.(C) No. 263 of 2006 Annamma v. Secretary, Cochin Coop. Hospital Society Ltd., (2018) 2 SCC 729 at paragraph-60 to 62, it has held as under: --
"60. The law in relation to Article 254 of the Constitution and how it is applied in a particular case is fairly well settled by the series of decisions of this Court. This Article is attracted in cases where the law is enacted by Parliament and the State Legislature on the same subject, which falls in List III - Concurrent List.
61. In such a situation arising in any case, if any inconsistency or/and repugnancy is noticed between the provisions of the Central and the State Act, which has resulted in their direct head on collusion with each other, which made it impossible to reconcile both the provisions to remain in operation inasmuch as if one provision is obeyed, the other would be disobeyed, the State Act, if it has received the assent of the President will prevail over the Central Act in the State concerned by virtue of Article 254(2) of the Constitution.
62. A fortiori, in such a situation, if the State Act has received the assent of the Governor, then the Central Act would prevail over the State Act by virtue of Article 254(1) of the Constitution."
96. The law is well settled regarding Article 254 of the Constitution of India and is very specific that in case law is enacted by the parliament and the State Legislature on the same subject, which falls in List III, concurrent list, in such a situation arising in any inconsistency and/or repugnancy between the provisions of the Central and the State Act, if the State Act has received the assent of the President, will prevail upon the Central Act in the concerned State by virtue of Article 254(2) of the Constitution of India. But if the State Act has received the assent of the Governor, then the Central Act would prevail over the State by virtue of Article 254(1) of the Constitution of India.
97. This Court on the basis of aforesaid constitutional mandate having been considered by the Hon'ble Apex Court in the cases referred herein above and after going through the notification dated 22.05.1947, has found that the said - 32 - W.P.(C) No. 263 of 2006 notification is with the assent of the Governor but the Indian Forest Act, 1927 is being the Central legislation, hence, the Indian Forest Act, 1927 will prevail upon the said notification.
98. This Court, after having answered the aforesaid issues and coming to the applicability of provision of Section 29(3) of the Indian Forest Act, 1927, has found that it is evident that from the proviso to sub-section (3) to Section 29 of the Indian Forest Act, 1927 that the power has been conferred to conduct enquiry by the revenue authority.
99. Here, another question would be that whether the private forest is to be brought under the fold of the proviso to sub-section (3) to Section 29.
100. The Indian Forest Act, 1927 is very specific which is for the purpose of maintaining the forest by giving a declaration to that effect and protected forest is also to be declared but for that an inquiry is to be there followed by notification in view of provision of Section 29(3) of the Act, 1927.
101. Here, the land in question will be said to be settled in the year 1943 in favour of the private parties as such, the State cannot say that the said land is of the State or of the ex-landlord or ex-king [raja] in the pre-independent period.
102. Further, if the land was in possession of the private parties since the pre independence period based upon that a lease deed was entered even then in view of the rider of the specific date i.e., 01.01.1946, the Collector cannot conduct enquiry for annulment of transfer.
103. The aforesaid issue has been decided by this Court with respect to applicability of the section 4(h) of the Bihar Land Reforms Act, 1950 in the case of State of Jharkhand & Ors vs. Izhar Hussain [LPA No. 786 of 2018], wherefrom it would be evident that provision of Section 4(h) has been held - 33 - W.P.(C) No. 263 of 2006 not applicable if the settlement has been shown to be pre 01.01.1946.
104. For ready reference, relevant paragraph is quoted as under:
"16. .............
-----Sub-section 4 (h) provides power upon the Collector to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof, and if he is satisfied that such transfer was made at any time after the 1st day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State or obtaining higher compensation thereunder the Collector may, after giving reasonable notice to the parties concerned to appear and be heard annul such transfer, dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable; provided that an appeal against an order of the Collector under this clause if preferred within sixty days of such order, shall lie to the prescribed authority not below the rank of the Collector of a district who shall dispose of the same according to the prescribed procedure and further provided that no order annulling a transfer shall take effect nor shall possession be taken in pursuance of it unless such an order has been confirmed by the State Government.
It is, thus, evident that Section 4(h) confers power upon the Collector to effect any transfer if such transfer is found to be for the purpose of frustrating the intent and purport of the Act in respect of transfer made any time after 1st January, 1946.
The issue pertaining to applicability of provision of Section 4 (h) fell for consideration before Patna High Court in the case of Laxman Sahni Vs. State of Bihar & Ors. reported in 1990 (1) PLJR 170, wherein it has been laid down to the effect that recourse for cancellation of Jamabandi under the Sections can be taken only where any estate or tenure or any part thereof vests in the State. Section 4(h) clothes the Collector with jurisdiction to make enquiries in respect of transfers made any time after 1st January, 1946.
Further, in the case of Sri Rama Prasad Singh & Ors Vs. The State of Bihar & Ors reported in 1990 (1) PLJR 165, it has been held that annulment of settlement made in 1945 on the assumption that it was made within the family to deprive the valuable land is mere presumption. On a plain reading of the provision it is obvious that the Collector while exercising power to make inquiries in - 34 - W.P.(C) No. 263 of 2006 respect of any transfer must be satisfied that such transfer was made at any time after 1st January, 1946. No finding recorded that the transfer was made after 1st January, 1946. The Land Reforms Deputy Collector being an adjudicating body could not recommend for such annulment and had to arrive at his own conclusions in terms of Section 4(h) of the Act.
18. Admitted fact herein is that the transfer has been made much prior to 1st January, 1946 i.e. sometimes in 20 the year 1933 by way of Auction Settlement being Auction Certificate Case No. 191 of 1933 and, therefore, in the facts of this case the provision of Section 4 (h) of the Act, 1950 should not have been initiated by the Circle Officer taking into consideration the settlement of the land in the year 1933 which exclude the land in question from the purview of Section 4(h) of the Act, 1950.
19. Further, even accepting the submission to the effect that the notification dated 24.05.1958 issued by the forest department holding the land as forest land and the fact that there was auction settlement in the year 1933, the question remains that under what authority and jurisdiction notification was issued in the year 1958 without resorting to any provision of law or without getting any declaration invalidating of the proceeding being Auction Certificate Case No. 191 of 1933.---------
----------
The question would be that in absence of any power conferred by Statute upon any of the revenue authority can Jamabandi be cancelled. The answer of this question would be in negative as statute confers power upon the authority and the authority can purportedly exercise the power conferred upon it under the statutory power and if any decision is taken in absence of any provision the same would be said to be nullity in the eye of law when found to be without jurisdiction.
It is further settled that long running Jamabandi cannot be cancelled, save and except by filing a suit before the competent Court of Civil Jurisdiction-------.
20. This Court, after having gone into the details as above as also travelling across the impugned order wherefrom it is evident that the learned Single Judge has relied upon the judgment in The State of Jharkhand & Ors vs. Chanchala Devi passed in L.P.A. No. 142 of 2010 with L.P.A. No. 307 of 2009, wherein it has been held by the Co-ordinate Bench of this Court that if the State Government is claiming ownership upon the property in question which is in possession of the tenant/raiyat and his/her predecessors-in-title since 09.06.1942, Civil Suit is the only remedy available with the State Government. Further it transpires from the impugned order that the learned Single Judge has also discussed about applicability of Section 29 of the Indian Forest Act, 1927, which confers power upon the State Government to issue - 35 - W.P.(C) No. 263 of 2006 notification in the official Gazette for declaring the 24 provision of this Chapter applicable to any forest land or waste-land which is not included in a reserved forest 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. Sub-Section (2) thereof further provides that the forest-land and waste-land comprised in any such notification, shall be called a "protected-forest".
Sub-section (3) thereof says that 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. Therefore, Section 29 (1) explicitly provides that the State Government may notify any forest land or waste 25 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 the inquiry be conducted under section 29 (3) regarding the nature and extent of right of the Government and of the private persons upon the forest land or the waste land.
25. We, on appreciation of the findings recorded by the learned Single Judge and on the basis of discussions made herein above, are of the view that there is no reason to differ with the view/opinion of the learned Single Judge, by coming to the conclusion that the order dated 09.09.2016 passed by the revenue authorities is illegal and not sustainable in the eyes of law, as they have exercised power conferred under section 4(h) of the Act, 1950 which as per the discussions made herein above has been found to be not applicable in the facts and circumstances of the case as the case of the writ petitioner is that he is claiming title over the land in question on the basis of settlement made prior to 1st January, 1946 and further the additional Collector by way of order passed in Misc. Case No. 56/2015-16 has already passed order on 17.03.2016 holding therein that the present raiyats i.e Izhar Hussain and Akhtar Hussain are the recorded raiyats of Register-II in Thoka (Lot) No. 1665 which is absolutely correct and proper. But without questioning and without reversal of that order, a fresh proceeding was initiated under Section 4(h) of the Act, 1950 and further long running Jamabandi cannot be cancelled, save and except by instituting a litigation before the Civil Court of - 36 - W.P.(C) No. 263 of 2006 competent jurisdiction. Hence, the order passed by the learned Single Judge cannot be faulted with.
26. Accordingly, since the instant appeal lacks merit, is dismissed."
105. It needs to refer herein that the view taken in the case of State of Jharkhand & Ors vs. Izhar Hussain (supra) has been affirmed by Hon'ble Apex Court in Special Leave to Appeal (C) No.8108 of 2021 vide order dated 06.07.2021.
106. Now adverting to the facts of the case, it is evident from the record that the petitioner had already applied for renewal of mining lease in Form J and the District Mining Officer, Dhanbad has also acknowledged receipt of application for renewal of mining lease dated 26.10.2005 in Form D.
107. Further, as per the affidavit filed by the petitioner that during pendency of this writ application a Joint Inspection was carried out by the officers of BCCL and the Forest personnel on 7.5.2010 and only 4 trees were found. None of these trees fall under the category of Forest.
108. Further it has come on record by way of rejoinder filed by the petitioner to the counter affidavit that the land in question falling under C.S Khata No. 118, Plot No. 2420having an area of 17.66 Acres as also Plot No. 2712 area 17.81 totaling 35.47 Acres has now been recorded in the Revisional Survey ie. R.S Record of Rights in the name of the petitioner in R S Khata No. 385 and final record of Rights have also been published u/s 83 (2) of the CNT Act, 1908.
109. It is apparent that the notification dated 1.11.1968 contained in Annexure A to the Counter affidavit has not been issued after undergoing due process of law since no enquiries have been made as required u/s 29 (3) of the Forest Act and hence the existing rights on the date of - 37 - W.P.(C) No. 263 of 2006 notification have not extinguished accordingly the notification is incomplete.
110. As per the mandate of the provision of Section 29(3) particularly its proviso confers power upon the State to conduct enquiry even accepting the same is the power to be exercised and based upon that power the notification was issued on 01.11.1968 but there is no final fact-finding report while on the other hand under the proviso it has been referred that the subsisting right of the party will not be jeopardized.
111. This Court, in view thereof, is of the view that the word 'subsisting right' will have paramount importance which means the right which is available over the land in question in the facts of the present case is to be exercised. Otherwise also the authority concerned cannot be allowed to take the aid of the notification said to be issued under Section 29(3) way back on 01.11.1968 and even after lapse of so many years there is no output with respect to the enquiry.
112. But the State on the one hand is taking lethargic approach even accepting the power under Section 29(3) is to be exercised for the last 50 years while on the other hand in the year 2005, the respondent has restrained the petitioner from mining operation. Such conduct of the State cannot be said to be proper. Moreover, as per the pleading made in the writ petition the land was leased out by the private parties and after coming into effect of Coal Nationalization Act, 1973 all the lands where the mining operation was carried out was vested with the Central Government and for the aforesaid purpose the nodal company has been constituted in the name and style of Coal India Limited and depending upon the - 38 - W.P.(C) No. 263 of 2006 territory the subsidiary companies have also been constituted one of them is Bharat Coking Coal Limited.
113. The other question is that when the mining operation as being carried out by virtue of Coal Nationalisation Act, 1973, then where is the question the authority without determining and without getting the report in view of provision of section 29(3) of the Act, 1927 has given such restrainment order.
114. Further, it is evident from the material on record that in view of the provision of Section 83(2) of the CNT Act, the final record of right has been issued and the same has attained its finality.
115. This Court, in view of the aforesaid discussion, is of the view that the issues, which have been framed, have been answered accordingly.
116. This Court, having answered the issues framed by this Court, is of the view that it is the authority concerned who without conducting the due enquiry and coming to the conclusion of fact finding based upon the provision of Section 29(3) of the Indian Forest Act, 1927, restrained the petitioner which requires interference by this Court.
117. Accordingly, the respondents are hereby directed to not interfere in any manner with the coal mining activities being carried out by the petitioner on Plot Nos. 2420 and 2712 of Khata No.118 of Mouza-Bowakalan @ Barki Bowa in the district of Dhanbad.
118. However, the authority concerned is at liberty to raise the issue of title, if it so wishes by ventilating the grievance before the competent court of civil jurisdiction.
119. Accordingly, the writ petition stand allowed.
- 39 - W.P.(C) No. 263 of 2006120. Pending Interlocutory Application(s), if any, stand disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Navneet Kumar, J.) (Navneet Kumar, J.)
High Court of Jharkhand, Ranchi
Dated: 14/01/2025
Saurabh/-
A.F.R.
- 40 - W.P.(C) No. 263 of 2006