Jharkhand High Court
The State Of Jharkhand vs Sher Ali Ansari Son Of Late Gani Ansari on 12 April, 2022
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.542 of 2019
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1. The State of Jharkhand.
2. The Deputy Commissioner, Garhwa, P.O. & P.S. & District
Garhwa.
3. The Collector cum Divisional Forest Officer, Northern
Forest Division, Garhwa P.O. & P.S. & District Garhwa.
4. The Additional Collector, Garhwa P.O. & P.S. & District
Garhwa
5. The Circle Officer, Garhwa P.O. & P.S. & District Garhwa.
6. The Deputy Collector, Land Reforms, Garhwa P.O. & P.S.
& District Garhwa.
... ... Respondents/Appellants
Versus
Sher Ali Ansari Son of Late Gani Ansari, Resident of At &
P.O. Garhwa P.S. & District Garhwa.
... ... Petitioner/Respondent
With
L.P.A. No.566 of 2019
----
1. The State of Jharkhand.
2. The Deputy Commissioner, Garhwa, P.O. & P.S. & District
Garhwa.
3. The Collector cum Divisional Forest Officer, Northern
Forest Division, Garhwa P.O. & P.S. & District Garhwa.
4. The Additional Collector, Garhwa P.O. & P.S. & District
Garhwa
5. The Circle Officer, Garhwa P.O. & P.S. & District Garhwa.
6. The Deputy Collector, Land Reforms, Garhwa P.O. & P.S.
& District Garhwa.
... ... Respondents/Appellants
Versus
Ayub Ansari S/o Zamalu Ansari, R/o Village Zuti, P.O.
Garhwa P.S. and District Garhwa.
... ... Petitioner/Respondent
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CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellants : Mr. Mithilesh Singh, G.A.-IV
For the Respondents : Mr. Shadab Bin Haque, Advocate
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ORAL JUDGMENT
Order No.10 : Dated 12th April, 2022 Both the appeals have been tagged together in pursuance of order dated 25.11.2021 and, as such, are being heard together.
I.A. No.8049 of 2019 in L.P.A. No.542 of 2019 & I.A. No.8356 of 2019 in L.P.A. No.566 of 2019
2. Both the appeals are barred by limitation, as such, separate applications have been filed under Section 5 of the Limitation Act to condone the delay of 269 days in filing L.P.A. No.542 of 2019 and 278 days in filing L.P.A. No.566 of 2019 taking similar grounds as such, both the applications are being heard together and are being dealt with by this common order.
3. It has been stated in the interlocutory applications that due to complete inadvertence and oversight as also due to Durga Puja, Deepawali and Chhath Festival it slipped out from the mind of appellants and its office staff to enquire from their Government Counsel with regard to present position of writ petitions.
It has been further stated that after passing of order dated 25.10.2018 (impugned), no communication was made to the office of the appellants by their counsel and as such, they were completely ignorant about the order dated 25.10.2018 passed by this Court in writ petitions.
The further ground has been taken that the office of the -3- appellants enquired from the website of the High Court with regard to present position of instant writ petition wherein the status of the case was shown as „disposed of‟ but order dated 25.10.2018 was not uploaded in the website and as such, it was not obtained by the appellants or their office staffs.
It has further been stated that in the last week of June 2019 the officers were sitting in district level meeting in the office of Deputy Commissioner, Garhwa and during this period, it was revealed by one of the State Government Officer that in one case the High Court has passed order that if the Forest Department is aggrieved by encroachment made by civilians upon forest land, then they may move before competent civil court for declaration of their right, title and interest upon same land. On hearing this news, the appellants immediately woke up and noticed that in two of writ petition filed against the Divisional Office, the same point of law is involved and, as such, immediately directed his office staffs to enquire into the matter and to obtain certified copies of orders passed in writ petitions.
Accordingly, the officer of the appellants rushed to Ranchi and contacted his concerned Government lawyer and requested him to procure the copy of order dated 25.10.2018 passed in the writ petitions. Thereafter, photocopy of order dated 25.10.2018 was obtained and after going through the contents of the instant order, advice of Government counsel was -4- obtained verbally wherein the opinion was furnished that the Forest Department is required to file Letters Patent Appeal against the order dated 25.10.2018 passed in writ petitions and thereafter on completion of formalities, i.e., drafting of memo of appeal etc., the instant appeals have been filed which caused delay of 269 days in filing L.P.A. No.542 of 2019 and 278 days in filing L.P.A. No.566 of 2019.
4. Mr. Mithilesh Singh, learned G.A.-IV, appearing for the State appellants, has submitted that the delay which has been caused in filing the appeals is not intentional and, as such, the same may be condoned so as to hear the appeals on merit, otherwise the appellants will be remediless.
5. Per contra, Mr. Shadab Bin Haque, learned counsel appearing for the respondents-writ petitioners, opposed the grounds raised in the interlocutory applications by referring the pleading made by him in the affidavits which have been filed in response to the instant interlocutory applications. However, learned counsel has not disputed the fact that the appeals, if will be adjudicated on merit, no prejudice will be caused to the respondents-writ petitioners.
6. This Court, after considering the aforesaid submission is of the view that instead of dismissing the appeals on the ground of limitation, it would be appropriate for this Court to decide the appeals on merit so that the appellants may not be prejudiced and the issue is decided for all time to come. -5-
7. In view of the fact that no plausible explanation has been given and the matters were required to be decided on merit, we condone the delay but subject to payment of cost of Rs.25,000/- each to be paid in favour of the writ petitioners by the appellant-State, to be paid within four weeks from the date of receipt of the order.
8. Both the interlocutory applications bearing I.A. No.8049 of 2019 and I.A. No.8356 of 2019, stand disposed of. L.P.A. No.542 of 2019 with L.P.A. No.566 of 2019
9. The instant appeals, preferred under Clause 10 of the Letters Patent, are directed against the order/judgment dated 25.10.2018 passed by learned Single Judge of this Court in W.P.(C) No.3959 of 2017 and W.P.(C) No.4654 of 2017 whereby and whereunder the order dated 08.05.2017 passed by the Collector-cum-Divisional Forest Officer, Northern Forest Division, Garhwa by which the writ petitioner of W.P.(C) No.3959 of 2017 has been directed to vacate the land situated at Khata No.77, Plot No.476, Village-Juti, District Garhwa having an area of 0.50 acre and the petitioner of W.P.(C) No.4654 of 2017 has been directed to vacate the land situated at Khata No.51 Plot No.242, Village-Juti, District Garhwa having an area of 0.43 acre, has been quashed and set aside by granting liberty to the respondents-appellants to pursue the civil remedy for declaration of right, title and interest upon the said land and shall be entitled to check deforestation upon the -6- said land in accordance with law irrespective of ownership of the said land.
10. Brief facts of the case as per the pleadings made in the writ proceedings, which are required to be enumerated herein, read as under :-
The ex-landlord Babu Kedarnath had settled the aforesaid land in favour of the petitioner of W.P.(C) No. 3959/2017 and the mother-in-law of the petitioner of W.P.(C) No. 4654/2017 by virtue of a Sada Patta before the promulgation of Zamindari Abolition Act, 1950. The said lands were recorded as Gair Mazurwa Malik Khas (Jungle Jhari). The settlees paid the rent to the ex-landlord till the vesting of Zamindari and continued their possession over the said land. They filed their respective applications before the Court of the Additional Collector, Garhwa for opening of Jamabandi in their names whereupon an enquiry was conducted by the Halka Karmachari and the report was submitted showing the settlees in peaceful possession of the said land by virtue of the settlement deeds executed by the ex-landlord.
The Additional Collector, Garhwa vide order dated 22.04.2013 passed in Misc. Case No. 46 of 2012-13 and Misc.
Case No. 47 of 2012-13, directed the Circle Officer, Garhwa to initiate the proceeding for opening the Jamabandi in favour of the settlees. Thereafter, the Circle Officer, Garhwa called for a fresh enquiry report from the Circle Inspector and finally -7- recommended for determination of the rent payable for the said land since the date of Zamindari Abolition and sent the record to the Deputy Collector, Land Reforms, Garhwa for approval. However, the Deputy Collector, Land Reforms, Garhwa returned the record to the Circle Officer, Garhwa seeking opinion regarding the nature of the land i.e. Gair Mazurwa Malik Khas, Jungle Jhari whereupon the Circle Officer, Garhwa reported that as per the Cadastral Survey, the lands were recorded as Jungle Jhari, but in the recent survey, the same have been recorded as Purani Parti and sent the record to the Deputy Collector, Land Reforms, Garhwa for determination of the rent.
It is the further case of the writ petitioners that despite lapse of more than two and half years, no decision has been taken by the Deputy Collector, Land Reforms, Garhwa on the application of the petitioners. In the meantime, the land encroachment cases have been instituted by the Forest Department, Garhwa against the petitioners claiming that the lands of the petitioners are situated under the protected forest area. The respondent No.3 vide orders dated 08.05.2017, has held that the petitioners have encroached upon the forest land and has directed them to vacate the same.
It is the case of the writ petitioners that after 1953, no Gazette has been published by the Forest Department. The petitioners have continued to be in possession of the said land for about 70 years and the Forest Department has never -8- disputed the said claim of the petitioners and all of a sudden they have been directed to vacate the land vide order dated 08.05.2017.
The writ petitioners, in both the writ petitions, being aggrieved with the order dated 08.05.2017, approached this Court by filing writ petition being W.P.(C) No.3959 of 2017 and W.P.(C) No.4654 of 2017 taking the plea that the writ petitioners are in peaceful possession of the land in question for the last 70 years and even though the matter relating to opening of Jamabandi and issuance of rent receipt is still pending before the Deputy Collector, Land Reforms, Garhwa, without taking into consideration that aspect of the matter, the order of eviction from the land in question has been issued and as such, the respondent authorities, while doing so, has not considered the fact about pendency of the issue of opening of Jamabandi before the revenue authority and, therefore, prayed for quashing and setting aside the aforesaid order.
The State respondents contested the case and submitted before the writ court that the alleged Sada Patta is a forged document and the same has been prepared only for the purpose of grabbing the Gair Majurwa land which has already vested in the State Government. The signature on the settlement paper and the rent receipts filed by the settlees for mutation of the land were compared and on comparing the writing and the signature of ex-landlord Kedar Nath Singh in -9- the rent receipt and the alleged settlement paper itself proves that the documents have been fabricated. The report prepared by the Halka Karamchari and the Circle Inspector was collusive one and the recommendation of the Circle Officer, Garhwa was also against the provisions of law. The recommendation made by the respondent No.4 for opening of Jamabandi in the name of the settlees was illegal and therefore the Deputy Collector, Land Reforms, Garhwa rightly returned the file with certain objection and clarification. Beside the nature of the land being Parti Jungle Jhari, the same fall within a protected forest and the petitioners have illegally encroached upon the said land. As such the land encroachment proceeding was initiated against them and they were rightly directed to remove the encroachment.
The learned Single Judge, after taking into consideration the facts in entirety, allowed the writ petitions and quashed and set aside the order dated 08.05.2017 passed by the Collector- cum-Divisional Forest Officer, Northern Forest Division, Garhwa granting liberty to the respondents-appellants to pursue the civil remedy for declaration of right, title and interest upon the said land, which is the subject matter of the instant intra-court appeals.
11. Mr. Mithilesh Singh, learned G.A.-IV, appearing for the State appellants in both the appeals, has submitted that the learned Single Judge has failed to appreciate the fact in right
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perspective and without taking into consideration the fact about the nature of land which admittedly is recorded in the record of rights as Jungle Jhari which fact was taken into consideration by the Divisional Forest Officer while issuing notice for eviction from the land in question, but no proper appreciation of fact has been given by the learned Single Judge while interfering with the impugned decision of the administrative authority and, therefore, the same is not sustainable in the eyes of law and fit to be set aside.
The further ground has been taken that once the notification has been issued under Section 29 of the Indian Forest Act, 1927, which explicitly provides that the State Government may notify any forest land or waste land as protected forest over which the Government has the proprietary rights, or to the whole or any part of the forest produce of which the Government is entitled and once such notification has been issued, there cannot be any settlement over the land in question and the writ petitioners have claimed title over the land in question which is nothing but contrary to the notification issued under Section 29 of the Indian Forest Act, 1927 but this aspect of the matter has also not been considered by the learned Single Judge and, as such, the order impugned is fit to be set aside.
12. While on the other hand, Mr. Shadab Bin Haque, learned counsel appearing for the respondents-writ petitioners, has
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submitted that the State authority has exceeded its jurisdiction in issuing the impugned order without holding any enquiry as stipulated to be conducted in view of the provision of Section 4(h) of the Bihar Land Reforms Act, 1950.
It has been submitted by rebutting the contention raised on behalf of the State appellant about applicability of Section 29 of the Indian Forest Act, 1927, making submission that the land in question will not come under the fold of the notification issued under Section 29(1) of the Act, 1927 due to the reason that sub-Section (3) of Section 29 puts a condition that such notification can only be issued subject to an enquiry about the nature and extent of the rights of Government vis-à-vis private persons upon the forest or wasteland, but, herein, no material has been produced by the State appellant as to whether any enquiry purported to be conducted in view of the provision of Sub-Section (3) of Section 29 of the Act, 1927 has ever been made and, therefore, the question of applicability of Section 29 of the Act, 1927, in no stretch of imagination is applicable herein.
Learned counsel, on the basis of these aspects of the matter, has submitted that the learned Single Judge, after taking into consideration the factual aspects as also the legal aspect, is correct in interfering with the impugned order and, as such, the same needs no interference and the appeals may be dismissed.
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13. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order.
14. This Court, before entering into the legality and propriety of the impugned order, deems it fit and proper to refer certain undisputed facts for proper appreciation of the lis.
The writ petitioners claim that the ex-landlord Babu Kedarnath had settled the land in favour of writ petitioner of W.P.(C) No. 3959 of 2017 and in favour of the mother-in-law of writ petitioner of W.P.(C) No. 4654 of 2017 by virtue of Sada Patta before the promulgation of Zamindari Abolition Act, 1950. The said lands were recorded as Gair Mazurwa Malik Khas (Jungle Jhari). The settlees paid the rent to the ex-landlord till the vesting of Zamindari and continued their possession over the said land. They filed their respective applications before the Court of the Additional Collector, Garhwa for opening of Jamabandi in their names whereupon an enquiry was conducted by the Halka Karmachari and the report was submitted showing the settlees in peaceful possession of the said land by virtue of the settlement deeds executed by the ex- landlord.
The Additional Collector, Garhwa vide order dated 22.04.2013 passed in Misc. Case No. 46 of 2012-13 and Misc. Case No. 47 of 2012-13, directed the Circle Officer, Garhwa to initiate the proceeding for opening the Jamabandi in favour of
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the settlees. The Circle Officer, Garhwa, thereafter, called for a fresh enquiry report from the Circle Inspector and finally recommended for determination of the rent payable for the said land since the date of Zamindari Abolition and sent the record to the Deputy Collector, Land Reforms, Garhwa for approval. However, the Deputy Collector, Land Reforms, Garhwa returned the record to the Circle Officer, Garhwa seeking opinion regarding the nature of the land i.e. Gair Mazurwa Malik Khas, Jungle Jhari whereupon the Circle Officer, Garhwa reported that as per the Cadastral Survey, the lands were recorded as Jungle Jhari, but in the recent survey, the same have been recorded as Purani Parti and sent the record to the Deputy Collector, Land Reforms, Garhwa for determination of the rent.
It is the case of the writ petitioners that despite lapse of more than two and half years, no decision has been taken by the Deputy Collector, Land Reforms, Garhwa on the application of the petitioners. In the meantime, the land encroachment cases have been instituted by the Forest Department, Garhwa against the petitioners claiming that the land of the petitioners are situated under the protected forest area. The respondent No.3 vide orders dated 08.05.2017, has held that the petitioners have encroached upon the forest land and has directed them to vacate the same.
It is the further case of the writ petitioners that after 1953, no Gazette has been published by the Forest Department.
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The writ petitioners‟ further case is that they are continuing to be in possession of the said land for about 70 years and the Forest Department has never disputed the said claim of the petitioner.
Thus, the case of the writ petitioners, revolves around their claim over the land in question on the basis of Sada Patta. The State respondents has disputed the aforesaid Sada Patta considering it to be a forged document and has taken the plea that the land in question is Gair Mazurwa Malik Khas, Jungle Jhari in nature which has already been vested in the State Government.
It is the case of the State respondents that the land in question is falling under the protected area and as such, in view of the notification issued under Section 29(1) of the Act, 1927, the writ petitioners have got no valid right and title over the land in question.
The writ court considered the rival submissions advanced on behalf of the parties and quashed and set aside the impugned decision passed by the administrative authority whereby and whereunder the writ petitioners have been directed to be evicted from the possession of the land in question, the same is under consideration before this Court to look into the legality and propriety of the aforesaid order passed by the learned Single Judge.
15. It is evident from the order passed by the administrative
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authority dated 08.05.2017 wherein, the concerned forest official has come out with the conclusion negating the claim of the writ petitioners on the ground of discarding the settlement made in favour of the writ petitioners by virtue of Sada Patta. It has been referred in the impugned order that since the land has been settled by way of Sada Patta which has not been accepted by the State Government, therefore, the said document is nothing but a waste paper and on the basis of said finding, conclusion has been arrived at negating the claim of the writ petitioners over the land in question.
16. It is not in dispute that after coming into effect of the Bihar Land Reforms Act, under Section 4(h) of the aforesaid Act the Deputy Commissioner has been conferred with the power to make an enquiry with respect to settlement of the land which has been settled on or after 01.01.1946, if such settlement has been made in order to defeat the very object and intent of the Act. The provision of Section 4(h) is being referred 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, 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
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may appear to the Collector to be fair and equitable." It is, thus, evident from bare perusal of the provision as contained under Section 4(h) of the Act, that the aforesaid power is to be exercised by the Deputy Commissioner to conduct an enquiry in order to ascertain that the land has been settled by the ex-landlord in order to defeat the object and intent of the Act, by settling the land on or after 01.01.1946.
17. Thus, save and except the provision of Bihar Land Reforms Act, 1950, there is no other provision to annul the transfer. Admittedly, no such proceeding has ever been initiated against the writ petitioners by resorting to provision of Section 4(h) of the Act, 1950.
The plea of the State appellants is that in view of notification issued under Section 29 of the Act, 1927, the land in question since has been notified to be under the protected area, therefore, said land ought not to have been settled by the ex-landlord.
18. This Court has gone through the provisions of Section 29(1) of the Act, 1927 as also Section 29(3) thereof, which read as under :-
"29. 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 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.
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(2) ... ...
(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 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."
It is evident from the provision of Section 29(1) of the Act, 1927 that the State Government is conferred with the power to declare a land to be under the protected area of the forest but while doing so, an enquiry is required to be conducted by the State authorities in view of the provision of Section 29(3) and only after aforesaid enquiry, the land is to be declared within the meaning of the protected area.
19. In the case in hand, the State Government has not come out with any document pertaining to conducting any enquiry ever in view of Section 29(3) of the Act, 1927.
Therefore, question would be that can the State be allowed to take the plea of applicability of Section 29(1) without holding enquiry as purported to be conducted under Section 29(3) of the Act, 1927?
The answer of this Court will be in negative, reason being
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that, Section 29 is to be read out in entirety and when Section 29(1) confers power upon the State Government to bring any land under the fold of protected area subject to condition of conducting an enquiry in view of the provision of Section 29(3) of the Act, 1927 and in absence of any enquiry conducted in view of the provision of Section 29(3), the State cannot be allowed to exercise the power to bring any land under the fold of protected area. Therefore, any enquiry report having not brought on record by the State appellants in these cases, this Court is of the view that the State authorities cannot be allowed to take the plea of applicability of Section 29(1) of the Act, 1927.
20. Further, the observation made by the forest official, holding the Sada Patta by which the writ petitioners claim that the lands in question have been settled in their favour, to be a waste paper, according to our considered view, such finding cannot be allowed to be made by the forest official, reason being that, the said finding can only be allowed to be made if any enquiry would have been conducted by the Deputy Commissioner, in view of the provision of Section 4(h) of the Act, 1950.
21. Further, the Divisional Forest Officer has never been conferred with the power to conduct enquiry for giving a finding about the Sada Patta to be a waste paper, rather, such finding can only be given by the Deputy Commissioner of the
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concerned district in exercise of power under Section 4(h) of the Act, 1950, as would appear from the bare perusal of the provision as contained therein and quoted hereinabove, or by getting a declaration from the competent court of civil jurisdiction.
But, in the instant case, the State appellant has not conducted any enquiry in view of the provision of Section 4(h) of the Act, 1950 or has not got their right declared by a competent court of civil jurisdiction, rather, the Divisional Forest Officer, taking aid of Section 29(1) of the Act, 1927, has issued the impugned order directing the writ petitioners to hand over the possession of the land.
In the case in hand, the State appellant has taken the plea that the enquiry has been conducted in view of the provision of Section 29(3) sometime in the year 2012-13, but question is that when such notification was issued in the year 1953, then under what authority the State Government has proceeded to conduct enquiry in purported exercise of power conferred under Section 29(3) of the Act, 1927, after delay of about 60 years from the date of issuance of such notification.
22. This Court has considered the fact from different angle also that even if there is no time period referred under Section 29(1) or 29(3) of the Act, 1927 but the question would be, can the State be allowed to initiate a proceeding at any time at the wish of the State Government or there will be a reasonable
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period to initiate such proceeding?
This Court has considered this aspect of the matter by taking aid of the judgment rendered by Hon'ble Apex Court in Situ Sahu & Ors. v. The State of Jharkhand and Others, [(2004) 8 SCC 340] wherein the subject matter although was not with respect to either under Bihar Land Reforms Act or enquiry to be conducted under Section 29(3) of the Indian Forest Act, 1927, rather, in the said case the subject matter was initiation of a proceeding under Section 71A of the Chota Nagpur Tenancy Act, 1908 wherein it has been provided under the aforesaid provision that the application for restoration of land can be filed any time when it comes to the notice that the transfer of the land has been done in violation of the provision of Chota Nagpur Tenancy Act, 1908, for ready reference, the provision of Section 71A is being referred as under :-
"71A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred. - If at any time, it comes to the notice of the Deputy Commissioner that transfer of land belonging to a Raiyat or a Mundari Khunt-Kattidaror a Bhuinhari who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or Section 48 or Section 240] or any other provisions of this Act or by any fraudulent method, including decrees obtained in suit by fraud and collusion] he may, after giving reasonable opportunity to the transferee, who is proposed to be evicted, to show cause and after making necessary inquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir, or, in case the transferor or his heir is not available or is not willing to agree to such restoration,
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re-settle it with another Raiyat belonging to Scheduled Tribes according to the village custom for the disposal of an abandoned holding :
Provided that if the transferee has, within 30 years from the date of transfer, constructed any building or structure on such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed :
Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before coming into force of the Bihar Scheduled Areas Regulation, 1969, he may, notwithstanding any other provisions of the Act, validate such transfer where the transferee either makes available to the transferor an alternative holding or portion thereof as the case may be, of the equivalent value of the vicinity or pays adequate compensation to be determined by the Commissioner for rehabilitation of the transferor:
Provided also that if after an inquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred land should be restored or re-settled, he shall require the transferor or his heir or another Raiyat, as the case may be, to deposit with the Deputy Commissioner such sum of money as may be determined by the Deputy Commissioner having regard to the amount for which the land was transferred or the market value of the land, as the case may be and the amount of any compensation for improvements effected to the land which the Deputy Commissioner may deem fair and equitable."
The Hon'ble Apex Court, after considering the provision of law as contained under Section 71A of the Chota Nagpur Tenancy Act, 1908, more particularly, taking into
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consideration the fact that the said provision contains "at any time, when it comes to the notice" a proceeding can be initiated under Section 71A of the Chota Nagpur Tenancy Act, 1908 and the Hon'ble Apex Court has clarified that the meaning of "at any time when it comes to the notice about violation of the provision of the Chota Nagpur Tenancy Act, 1908" does not mean that the application can be allowed to be filed after lapse of considerable period, rather, such application is required to be filed within a reasonable period.
23. This Court, by taking analogy of the aforesaid proposition and applying in the present scenario and in the given facts of the case, is of the considered view that the notification has been issued by the State Government in view of the provision of Section 29(1) of the Act, 1927 but no enquiry has been initiated fairly for a period of about 60 years and only in the year 2012- 13 a proceeding is said to have been initiated and, thereafter, the impugned decision has been taken. Therefore, this Court is of the view that the State cannot be allowed to initiate an enquiry in view of the provision of Section 29(3) of the Act, 1927 after the lapse of about 60 years.
24. This Court has further considered the fact that the writ petitioners are in possession of the land for the last 70 years and after lapse of about 60 years initiating such proceeding for evicting the writ petitioners from the lands in question, cannot be said to be a proper exercise that too without taking any
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declaration in this regard from the competent court of jurisdiction.
It further appears from the record that the writ petitioners made applications for opening of Jamabandi before the Deputy Collector, Land Reforms, wherein report was called for by the concerned authority and to that effect a report was submitted wherein reference of the Cadastral Survey has been made although, therein the reference of the land has been made as Gair Mazurwa Malik Khas (Jungle Jhari) but in the Revisional Survay record, the land has been shown to be „Purani Parti‟ but even after receipt of such report, no decision has been taken by the revenue authority. The question would be that when the revenue authority is in seisin of the matter, can the action taken by the Divisional Forest Officer be said to be proper?
25. According to the considered view of this Court, such action of the Divisional Forest Officer cannot be said to be proper for two reasons. Firstly, in case the writ petitioners succeed before the revenue authority, then what would be its consequence once the writ petitioners are evicted and secondly, the Divisional Forest Officer has only considered the nature of the land shown in the Cadastral Survey wherein the nature of the land has been shows as Gair Mazurwa Malik Khas (Jungle Jhari), totally ignoring the nature of the land shown in the Revisional Survay as „Purani Parti‟.
It is not in dispute that the Cadastral Survey has been
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superseded by the Revisional Survey conducted sometime in the year 1932 and once the nature of land has been shown to be in the recent survey as „Purani Parti‟, the plea of nature of land shown to be as Gair Mazurwa Malik Khas (Jungle Jhari) in the Cadastral Survey cannot be said to be the right approach of the Divisional Forest Officer.
26. This Court, having discussed the issue, both on facts and law, hereinabove, has also gone across the order passed by the learned Single Judge and found therefrom that the learned Single Judge has taken into consideration the fact about pendency of the application regarding opening of Jamabandi before the Deputy Collector, Land Reforms, in which a report was sought for from the Circle Officer concerned. The report has been furnished showing the nature of land in the Revisional Survey as „Purani Parti‟. Further, the implication of the enquiry having not been conducted as contemplated under Section 29(3) of the Act, 1927 has also been taken into consideration and as such, by considering these aspects of the matter, the learned Single Judge has interfered with the impugned order, which according to our considered view, cannot be said to suffer from any error. More so, learned Single Judge has given liberty to the respondent State to contest the matter pending before the revenue authority as also to approach competent court of civil jurisdiction for adjudication of right and title. In that view of the matter also, the learned Single Judge
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has not decided the issue of right and title of the land in question, therefore, on this count also, the order passed by the learned Single Judge cannot be said to suffer from any error.
27. In the result, the instant appeals lack merit and accordingly the same are dismissed.
28. Pending interlocutory application(s), if any, also stands disposed of.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Birendra/ A.F.R.