Jharkhand High Court
Kamal Kumar Singhania And Anr. vs State Of Jharkhand And Ors. on 2 June, 2003
Equivalent citations: [2003(3)JCR195(JHR)]
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
JUDGMENT S.J. Mukhopadhaya, J.
1. An Encroachment Case No. 01/98 was filed to take steps for eviction of the petitioners under provisions of Section 66A of the Indian Forest (Bihar Amendment) Act, 1989 read with Section 6 of the Bihar Public Land Encroachment Act, 1956. It was alleged that the petitioners have encroached forest land on Plot No. 11 of Village Chakla, P.S. Ormanjhi, P.S. No. 32, district Ranchi. The complaint petition was filed by the Director, Bhagwan Birsa Jaiwik Udyan, Ranchi.
2. M/s. Vinimay Leasing Finance Pvt. Ltd. through its Director, having received a notice vide Memo No. 1910, dated 23rd May, 1998, moved before this Court in CWJC No. 1886/98(R). In the said case, this Court taking into consideration that the petitioner of the said case claimed right and title in respect of the land, in question, and relied on one or other orders passed by the State authorities and the fact that the respondents in their counter affidavit disputed the right and title of petitioner, vide order dated 19th February, 1999 directed the petitioner to bring the fact to the notice of the Divisional Forest Officer, Ranchi before whom the land encroachment proceeding, in question, is pending.
3. The petitioner of the said case was allowed to file relevant documents showing its "right and title over the land, in question and documents to show that the land, in question, was never notified as a forest land.
4. The petitioners appeared in the Court of Collector-cum-Divisional Forest Officer, Ranchi East, Forest division, Ranchi and filed objection in Encroachment Case No. 1/98. The petitioners brought on record the evidences, such as Khatian, Registered sale deeds dated 20th July, 1935 and 13th March. 1997; Mutation papers; Maps; correction Slip; orders passed by the D.C.L.R., Ranchi, S.D.O. Sadar, Ranchi; Deputy Commissioner, Ranchi and Commissioner South Chotanagpur, Ranchi in support of their claim of right and title over the land, in question.
5. The applicant i.e., the Director, Bhagwan Birsa Jaiwik Udyan, Ranchi tried to raise a dispute in his petition dated 30th July, 1999 that the entire of Plot No. 11 (i.e. 75.35 acres) belongs to the Government and the records of the opposite party -petitioner herein are not clear and creates a serious doubt.
6. On hearing the parties, the Collector-cum-Divisional Forest Officer, Ranchi East, Forest Division, Ranchi, vide his order dated 27th September, 1999 passed in Encroachment Case No. 1/98 ordered the petitioner to remove and vacate encroachment on 3.48 acres of the forest land from the south - eastern side of the Plot No. 11 as per revisional survey map (owned by the forest authorities) within five days from the service or production or receipt of the order.
7. It will be evident from the detailed order dated 27th September, 1999 passed in Encroachment Case No. 01/98 that there was a disputed question of right and title in respect to 3.48 acres of land in question: The authority accepted that there was a serious dispute and he was not in a position to give a clear finding relating to location of land nor in a position to determine whether the land, in question, belongs to the State or not. It will be evident from the following findings of the authority concerned.
"7. There is no dispute that the total area of Plot No. 11 of village Chakla of P.S. Ormanjhi, P.S. No. 32 is 75.35 acres. There is also no dispute that out of this 75.35 acres an area of 69.70 acres has been acquired by the Forest Department, Government of Bihar and notified as protected Forest vide Government Notification No. C/F-170 33/55-2180 (R) dated 1.7.1955. The interested party, the applicant, the O.P. in this proceeding as well as various revenue authorities have accepted it. Hence, it is admittedly settled that in Plot No. 11 of this locality, 69.70 acres is forest land and the remaining 5.65 acres is non-forest land. For the sake of convenience I take this remaining area as raiyati land or private land as has been pronounced by different Revenue Authorities.
This means that there is no dispute regarding acreage (i.e. the area) of the forest land and the non-forest land in the said Plot No. 11 of this locality.
8. The only dispute is about the location or situation or distribution of this 5.65 acre area of land in the said Plot No. 11. The O.P. contends that this area is situated entirely as one piece or chunk of land on the eastern side of the Plot No. 11 touching the boundary of Plot No. 10. This contention is made with the help of copies of land maps forming part of the four sale deeds referred to in para 12 of the petition dated 8.3.1999 which has been accepted by different revenue authorities in their reports in this regard which have been annexed with different petitions of the O.P.
12. A close scrutiny of all the four sale deed documents executed in favour of the Vinimay Leasing Finance Pvt. Ltd. reveal the "Chauhaddi" on west side of the four pieces of land (marked as A, B, C and D in the four land maps forming part of the four sale deeds) "a murram road provided by the Government for common use of the public." This road has also been shown on these copies of the four land maps.
13. The O.P. produced on 6.6.1999 attested copies of two maps viz. the R.S. map of 1932-33 and the recent survey . map (declared not final by the O.P.) the first copy shows no demarcation line and boundary pillars of the forest land. To me it appears quite natural because any portion of the land in the said Plot No. 11 had not been declared forest land in or before 1932-33 and so there was no question of any such demarcation at that time. But it is very striking and palpable from this map that there also does not exist any such road (called murram roads in the sale deed document) like that depicted on the four land maps forming part of the four sale deeds.
The copy of the so-called not-final recent survey map (which is presumably underway at present) also does not provide for the existence of any such road in Plot No. 16 (new name assigned to the bounded portion of land in Plot No. 11) or in its adjoining area in any direction. It is not difficult to discern i'rom this map that boundaries of this Plot No. 16 are exactly the same as that of the demarcation line (as claimed by the intervenor and the applicant) covering the forest land area in Plot No. 11 in the copy of the R.S. map produced by them (viz. Annexure-14 to the application dated 6.9.1999 of the intervenor or the interested party)".
8. Whether the revisional survey map was final or not was also in doubt. Merely on the presumption that the map must have been published, such finding has been given by the authority, as evident in the following observations of the authority concerned.
"14. The O.P. tried to dismiss the validity and admissibility of this map current survey map by saying that this is not final meaning thereby that it is liable to some change later on. But in my considered opinion this not-final map (presuming it to be the worst case) cannot be dismissed altogether because even this map must have been published on the basis of some record and previous map applicable with the revenue or survey settlement authorities. It is noteworthy that even the no. of boundary pillars on the boundary lines of Plot No. 16 and on the demarcation line in the copy of the R.S. map (Annexure-14 as referred to in para 13 above) are the same precisely 17 in numbers in both the maps".
9. Now it is a settled law that a disputed question of right and title cannot be determined in a land encroachment proceeding. In this respect, one may refer to the Special Bench decision of Patna High Court in the case of Bhukan Kalwar and Ors. v. S.D.O., Siwan and Ors., reported in AIR 1955 Pat 1.
10. In the present case, there is a serious doubt relating to right and title over the land, in question. Its location is also not clear. Even the Collector-cum-Divisional Forest Officer, Ranchi East, Forest Division, Ranchi could not give a clear finding relating to exact location of land in dispute and the land as claimed by petitioners. In this background, it was not open for the authorities to decide the issue in a summary proceeding, such as the proceeding under Section 66-A of the Indian Forest (Bihar Amendment) Act, 1989 or Section 6 of the Bihar Public Land Encroachment Act, 1956, but could have asked the aggrieved party to move before a Civil Court of competent jurisdiction for appropriate relief.
11. For the reasons aforesaid, the order dated 27th September, 1999 passed in Encroachment Case No. 01/98 cannot be upheld nor the appellate order dated 5th September, 2001 passed in Encroachment Appeal No. 16/99. They are, accordingly, set aside.
12. Liberty is given to aggrieved party to move before a civil Court of competent jurisdiction for declaration of right, title and possession/confirmation of possession or any other appropriate relief.
13. The writ petition stands disposed of with the aforesaid observations and directions. No cost.