Jharkhand High Court
P.N. Pathak @ Pradip Narayan Pathak vs The State Of Jharkhand on 10 October, 2023
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 1751 of 2022
1. P.N. Pathak @ Pradip Narayan Pathak
2. Randhir Singh @ Randhir Kumar Singh ... .... Petitioners
Versus
1. The State of Jharkhand
2. Divisional Forest Officer, Bokaro Forest Division, Bokaro
... .... Opp. Parties
With
Cr. M. P. No. 2829 of 2022
1. P.N. Pathak @ Permanand Pathak @ Pradip Narayan Pathak
2. Randhir Singh @ Randhir Kumar Singh ... .... Petitioners
Versus
1. The State of Jharkhand
2. Divisional Forest Officer, Bokaro Forest Division, Bokaro
... .... Opp. Parties
With
Cr. M. P. No. 3898 of 2022
1. Umang Kejriwal
2. Dr. Chandra Prakash Pandey @ Chandra Prakash Pandey
... .... Petitioners
Versus
1. The State of Jharkhand
2. Divisional Forest Officer, Bokaro Forest Division, Bokaro
... .... Opp. Parties
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Petitioners : M/s Indrajit Sinha & Bibhash Sinha, Advocates For the State : M/s Priya Shresha & Nehla Sharmin, S.P.P.
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Oral Order 10 / Dated : 10.10.2023 All these criminal misc. petitions, raise same questions of fact and law, are being heard together and shall be disposed of by this common order.
1. Cr.M.P. No. 1751 of 2022 has been filed for quashing the entire criminal proceeding including the summoning order dated 29.08.2019 passed in C.P. Case No. 555 of 2018 (Forest) whereby and whereunder, prima facie case has been found to be made out under Sections 33 and 63(c) of Indian Forest Act, 1927.
Cr.M.P. Nos. 2829 of 2022 and 3898 of 2022 have been filed for quashing the entire criminal proceeding including the summoning order dated 29.08.2019 passed in C.P. Case No. 553 of 2018 (Forest) whereby and whereunder, prima facie case has been found to be made out under Sections 33 and 63(c) of Indian 2 Forest Act, 1927.
2. Can a cognizance be quashed in a case concerning protected forest notified under Section 29 of the Indian Forest Act, 1927, alleged to have been encroached and grabbed by private parties, claiming title over the said forest area, is the central question involved in these criminal miscellaneous petitions?
3. In Cr.M.P. Nos. 2829 of 2022 and 3898 of 2022 arises out of C.P. Case No. 553 of 2018 (Forest), offence report lodged by the forest guard is the basis of the forest cases. Cognizance has been taken on the prosecution report filed by the forest range officer. The case of the prosecution in brief is that the land appertaining to Plots Nos. 4836, 4837, 4839, 4840, 4856 and 4897 measuring 71.83 acres of Mouza Siyaljori, Thana No. 202 was declared protected forest vide Notification C/F-17014/58-1429R dated 24.05.1958. It is alleged that the petitioners/ accused persons had encroached the protected forest area and had constructed boundary wall and installed different units of Electro-steel Integrated Limited and Electro-steel Steels Limited.
4. Cr.M.P. No. 1751 of 2022 arises out of C.P. Case No. 555 of 2018 (Forest) the matter involves encroachment of the same company over Bandhdih Plot No. 1605 and Hutupathar Plot No. 1090 and 1092 by constructing road which is claimed to be protected forest area by the same notification. CASE OF THE PETITIONERS
5. It is submitted by learned counsel for the petitioners that the notification by which the plot of land is claimed to be protected forest was published on 24.05.1958 and the recital of the said notification reads as under:
"No. C/F-17014/58-1429R--In exercise of the powers conferred by section 29 of the Indian Forest Act, 1927 (Act XIV of 1927), the Governor of Bihar is pleased to declare the provisions of Chapter IV of the said Act applicable, from the date of this notification, to the forest lands and waste lands specified in the schedule hereto annexed and situated in the district of Dhanbad.
The forest lands and waste lands comprised in this notification shall be called a "Protected forest".
The nature and extent of the rights of Government and of private persons in or over the forest land and wastelands comprised in this notification have not yet been enquired into and recorded as laid down in sub section (3) of section 29 of the said Act, but as the State Government thinks that such enquiry and record will occupy such 3 length of time as in the meantime to endanger the rights of Government and as the enquiry and record of rights will hereafter be made this notification is issued subject to all existing rights of individuals or communities."
6. By referring to the above notification, it is argued that this notification was not final and before the final notification, right of Govt. and of private persons was to be enquired into. Till date, no such enquiry has been conducted and no forest settlement officer was appointed by the State to hold such an enquiry. In the absence of such enquiry notification did not attain finality so as to affect the private right of the parties. Sub-section (3) of Section 29 requires the right of the local people to be enquired into.
7. Based on the same notification, similar allegation of 44 criminal cases which were launched against the company and its officials which has been quashed by this Court in different cases details of which has been given in pages-15 to 17 and some of the matters S.L.P. was filed in the Hon'ble Supreme Court which has also been dismissed.
8. It is also submitted that no specific role in the said offence has been attributed to these petitioners and whatever allegation has been made, it is against the company and not the petitioner. The company had purchased these lands through registered sale deeds and the said lands have been mutated against the company. It has been held in 2005(3) JCR (Jhr) 464 that in case where there is a dispute regarding title, criminal prosecution is not maintainable.
9. Reliance is placed on 1962 (3) SCR 727. It is submitted that Section 29 is pari-materia. In Section 30 of the Bihar Private Forest Act, 1946 it was held that once the notification is issued under the proviso to Section 30 that shall not amount to private protected forest only after enquiry it can be regarded as private forest.
ARGUMENT ON BEHALF OF STATE/FOREST DEPT.
10. Learned counsel for the State in all cases have opposed the quashing petition and counter affidavit has been filed. It is the case of M/s Electrosteel Steels Ltd. instead of establishing steel plant at the permitted site i.e. Village Parbatpur, Block Chandankiyari, District Bokaro encroached upon approx. 220 acres of notified and demarcated forest land in Bhagabandh, Siyaljori, Hutupathar and Bandhdih village under Bokaro Forest Division jurisdiction to establish the said steel plant and thus, violating the Environment (Protection) Act, 1986, Indian Forest Act, 1927 and Forest Conservation Act, 1980. Mouza Bhagabandh, 4 Siyaljori, Hutupathar and Bandhdih falls within Chas Block of Bokaro District.
11. Against the above violation the Forest Department has taken legal action against M/s Electrosteel Steels Ltd. under Sections 33 and 63 of Indian Forest Act for all 220.88 acres of land encroached by M/s Electrosteel Steels Ltd. were taken. It was found by the forest officials that non-forestry activities such as dozering, leveling, digging of forest land, encroaching the forest land by way of construction work, defacing boundary pillars was carried out by the employees and staffs of the said company in the notified and demarcated forest land.
12. Land in question was Govt land duly notified to be a forest land by notification in 1958 under Section 29 of the Indian Forest Act. Nature of enquiry contemplated under Section 29 is not with regard to the proprietary right over the land as the said land was Govt land, but was with respect to ancillary rights such as cutting grass, pasture, right to forest produce for which rules have been contemplated under Section 32 of the Act.
FINDINGS
13. It is not in dispute that land in question wherein constructions and encroachments have been made comes within the protected forest notified as a Protected Forest in 1958 under Section 29 of the Indian Forest Act, 1927 (for short Act 1927), as referred to above.
14. The first plea taken on behalf of the Petitioners is that this notification was proviso to Section 29(3) of the Act 1927 wherein no enquiry as contemplated under Section 29(3) has been carried out, and therefore the claim of the forest department on the said notification is non-est in the eyes of law.
15. This plea is founded on basic misconception about the nature of Reserved and Protected Forest, and the nature of enquiry contemplated for their notification. The enquiry contemplated under Chapter II and IV of the Indian Forest Act, 1927 is not an enquiry about the proprietary rights over the land in question, as both the category of forest can be declared forest only in a Govt. land or land over which the Govt had Proprietary right over it. Enquiry is intended to be confined to the forest rights of the individuals or communities over forest produce like pasture, forest wood and so on, as contained under Sections 12 and 32 of the Indian Forest Act. Protected Forest admits of such rights, whereas Reserved Forest excludes such right.
16. A bare reading of the provisions contained between Chapter II and Chapter IV of the Indian forest Act, will clearly mark differences between the two. The "reserved forest" under Section 5 bars accrual of forest rights and lands 5 comprised under such notification, except by a succession or under a grant 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 either:-
(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
17. In case of Reserved Forest there is complete exclusion of forest rights of individual or communities on the forest, 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 which provides that no right over the notified land is admitted or recognized after the notification under Section 5. When a Forest is thus notified as reserved forest it is free from claim of any private forest right over it.
18. 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 the Govt land does not become a private land. As discussed above, a protected forest admits to certain private right for which rules regulating such rights can be framed. If an enquiry has not been made as required under Section 29(3) it will not give private individuals any proprietary right over the land and make the government land a private raiyati land. There is no elaborate procedure for holding such an enquiry 6 under this chapter, as under chapter 2 and it does not contemplate two notifications namely provisional and final notification. Under chapter 2 the process commences with notification under section 4 and culminates with final notification under section 20 of Reserved Forest. Same is not the case with protected forest which is notified under Section 29 which is itself final and not provisional or preliminary in nature even if the enquiry has not been held . Provisions of Section 29 of the Rajasthan Forest Act, 1953 which is pari materia to Section 29 of the Indian Forest Act, came up for consideration in Tarun Bharat Sangh, Alwar v. Union of India and others, 1993 Supp (3) SCC 115 at page 123. Precisely the same argument was raised before Hon'ble the Supreme Court and rejected in the following words:
"Shri Bhandare submits that a notification issued under the proviso to sub- section (3) is only an interim or provisional notification and that after conducting the inquiry contemplated by the main limb of sub-section (3), a regular and proper notification under sub-section (1) has still to be issued. Until then, he submits, the declaration as protected forest does not take effect. We are not prepared to agree. Section 29 contemplates only one notification declaring an area as a protected forest. Whether issued after a normal enquiry and record or without enquiry or record, Section 29 contemplates only one notification and not two in any event. Therefore, the notification issued is the valid and effective one. It is not a provisional or preliminary notification". (emphasis supplied)
19. What follows from the above discussion is that the basic plea advanced on behalf of the petitioners that notification under Section 29(3) of the Indian Forest Act was not final, and therefore Electrosteel Steels Ltd. Company of which the Petitioners are employees, had acquired a right title and interest over the suit property by virtue of the registered sale deed executed in its favour, is not tenable.
20. Argument on behalf of the petitioner that provisions under Section 29 of the Indian Forest Act, 1927 is pari materia to Section 30 of the Bihar Private Forest Act,1947 is equally misplaced which shall be apparent by plain reading of both these provisions, which is extracted below:
Section 29 of the Indian Forest Act defines Protected forests.--(1) The State Government may, by notification in the Official Gazette, declare the provisions of this Chapter applicable to any forest-land or waste-land which is not included in a reserved forest but which is the property of 7 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.
(2) The forest-land and waste-lands comprised in any such notification shall be called a "protected forest".
(3) No such notification shall be made unless the nature and extend 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 think 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.
Section 30 of the Bihar Private Forest Act is as under S.30 Notification declaring forest to be a private protected forest When the following events have occurred, namely-
(a) the period fixed under Section 16 for preferring claims has elapsed, and all claims, if any, made under Sections 16 and 22 have been disposed of by the Forest Settlement Officer; and
(b) if any such claims have been made, the period limited by Section 27 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate officer;
the [State] Government shall publish a notification in the Official Gazette specifying definitely, according to boundary marks erected or otherwise, the limits of the forest which is to be constituted a private protected forest, and declaring the same to be a private protected forest from the date fixed by the notification, and from the date so fixed such forest shall be deemed to be a private protected forest:
Provided that, if in the case of any forest in respect of which a 8 notification under Section 14 has been issued, the [State] Government consider that the inquiries, procedure and appeals referred to in this Chapter will occupy such length of time as to cause undue delay in the forest being declared a private protected forest, such delay, in the opinion of the [State] Government, being prejudicial to the public interest, the [State] Government may, pending the completion of the said inquiries, procedure and appeals, declare, by a notification containing the particulars specified in this section, such forest to be a private protected forest.
21. From a bare reading of the above two provisions, it shall be apparent that contrary to the provision of Section 29 of the Indian Forest Act, neither Section 30 or any other provision of the Bihar Private Forest Act, relates to a land which is a government land. As the very name suggests it relates to private forests which were recorded in the names of the landlords and therefore Section 4 expressly provides that right of the landlord and the right of any other person to cut, collect or remove trees etc. shall not be exercised in contravention of the provisions made under this Act. Section 13 makes specific provision to constitute a private protected forest. The forest so declared private protected forest cannot be equated with the Protected Forest which was so declared under the Indian Forest Act. Provisions of Bihar Private Forest Act basically applied to those private lands of the land lords which were recorded as jungle Jhari in the records of rights as per the definition of forest under Section 3 of that Act. Before independence they were protected by the State and post-independence it sought to be managed by the Bihar Act 1947. Section 2 makes it abundantly clear that Bihar Private Forest Act, 1947 will not apply to any land which is vested in the Govt or regarding which notification and orders is issued under the Indian Forests Act. After a private forest is declared as private protected forest its control and management vests in the State as has been held in Guru Datta Sharma v. State of Bihar, (1962) 2 SCR 292
18. When a private forest is declared a "private protected forest" under the provisions of Chapter 3 the provisions of Chapter IV come into operation. Section 31 with which this Chapter opens enacts:
"31. The control and management of every private protected forest shall vest in the Provincial Government."
The management and control thus vested is to be exercised through forest officers.
Therefore, the ratio as laid down in State of Bihar and others v. Lt.
9Col. K.S.R. Swami, (1962) 3 SCR 727 will not apply to the facts of the present case.
21. What follows from the above discussion is that the petitioners representing the Electrosteel Steels Ltd.
22. Company which encroached and occupied vast swaths of Protected Forest Area notified under Section 29 of the Indian Forest Act, seek quashing of criminal prosecution by questioning the said notification in a criminal proceeding. There is a presumption in favour of the notification which has been issued long back in 1958. It has been held in Rohit Singh and others v. State of Bihar (Now State of Jharkhand) and others , (2006) 12 SCC 734
24. As regards the finding that the notification under Section 29 of the Forest Act has not been proved, the same has also to be held to be unsustainable. The gazette notification issued 32 years prior to the suit was produced and marked in evidence and no circumstance proved justified an inference that it might not have been published as enjoined by law. The regularity of issue of such a notification should have been presumed leaving it to Defendants 3 to 17 to rebut that presumption. For the present, all that is required is to vacate the finding in that regard entered by the lower appellate court.
23. Judgments of civil courts do not adjudicate upon right in rem save and except under sections 40 and 41 of the Indian Evidence Act,1872. The present case do not come under those categories and therefore any decision which has attained finality either on the criminal or civil side will have no bearing to the present case.
24. Is it a case of bona fides dispute of title for which a criminal prosecution or not to have been initiated?
25. In order to get the answer to this question, matter for consideration is what do we exactly mean by title dispute. Can any claim raised over the title be called title dispute? Whether execution of sale deed followed by mutation are conclusive proof of upon a fight title?
The proprietary title can devolve by a method known to law such as inheritance, testamentary succession, registered sale deed or gift deed which needs to be specifically pleaded and proved. The source of title along with the chain of title needs to be disclosed with certainty. It is a trite law that no one transfers a better title than he himself has. Unless the person from whom one claims to acquire title had valid title over it, there cannot be any devolution of 10 title. Mutation and issuance of rent receipts will be of no avail, as mutation neither creates not extinguishes his title. Mere raising of a plea of title cannot grant immunity from prosecution, unless such plea is founded on a document of title from which a prima facie inference can be drawn regarding the colour of right of the petitioner over such property. Here in the present case title is being claimed in teeth of lands duly notified as protected forest. The said notification remained unchallenged and now after long lapse of time title over forest lands are being claimed by private parties on wrong interpretation of the provisions of the Forest Acts.
26. As discussed above, the claim of title is made over a large tracts of government land which had been duly notified as protected forest area way back in 1958 which is prima facie not sustainable. Materials prima facie go to show that Petitioners representing the company had encroached upon and grabbed more than 200 acres forest land and are now claiming immunity from criminal prosecution by quashing of the case. Any such order of quashing will legitimize illegal encroachment of forest land. It shall be desirable to keep in mind the observations made in State of Uttarakhand and others v. Kumaon Stone Crusher, (2018) 14 SCC 537 XIII. Meaning of "forest"
124. Safeguarding of forest has also been recognised by our Constitution under Article 48-A which obliges the State to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51-A clause (g) enumerates the fundamental duty of every citizen of India to protect and improve the natural environment including the forests, lakes, rivers, wildlife.
This Court does not find any illegality or infirmity in the impugned order. Criminal miscellaneous petitions are dismissed. Pending I.A., if any, stands disposed of.
(Gautam Kumar Choudhary, J.) AKT