Chinta Devi @ Chintamoni Debi v. State of Jharkhand

: Mr. P.S.A.S. Pati, Advocate : Mr. Ashok Kr. Yadav, Advocate : Mr. Ranjan Kumar, Advocate (W.P.(C) No. 88/2020) : Mr. Uttam Kr. Das, Advocate : Mr. Ankit Kumar, Advocate (W.P. (C) No. 87/2020) 06/09.05.2023 --- Learned counsel for the parties are present.

1. 2. W.P. (C) No. 88 of 2020 has been filed for the following reliefs: - ―i. For a declaration that the entire proceedings initiated against the land belonging to the petitioner vide BPLE Case No. 19/2017-18 and orders 2 passed by the Collector – cum- Divisional Forest Officer, Jamshedpur, Forest Division, Jamshedpur in the said proceeding is non-est in the eyes of law and without jurisdiction and also direct the respondents to produce the notification issued by the respondent notifying respondent no. 2 as the Collector under the Act of 1956; ii. For quashing the order dated 15.06.2019 passed in BPLE Case No. 19/2017-18 (Annexure-8) passed by the Collector-cum-Divisional Forest Officer, Jamshedpur, Forest Division, Jamshedpur whereby and where under an order of eviction has been passed against the land belonging to the petitioner; iii. For quashing the notice published in local daily new paper ‗Prabhat Khabar‘ dated 03.01.2020 (Annexure-7) wherein the property of the petitioner has been mentioned at Sl. No. 42 of the notice directing to vacate the land in question within a period of one week failing which the same shall be vacated forcefully; iv. For a further direction upon the respondents no. 2 and 3 to carry out a joint inspection/demarcation of the land belonging to the petitioner so as to ascertain the actual description of the land as well as its nature; And/or v. For issuance of any appropriate writ/order/direction for any other relief(s).‖

3. W.P. (C) No. 87 of 2020 has been filed for the following reliefs: - ―i. For a declaration that the entire proceedings initiated against the land belonging to the petitioner vide BPLE Case No. 21/2017-18 and orders passed by the Collector – cum- Divisional Forest Officer, Jamshedpur, Forest Division, Jamshedpur in the said proceeding is non-est in the eyes of law and without jurisdiction and also direct the respondents to produce the notification issued by the respondent notifying respondent no. 2 as the Collector under the Act of 1956; ii. For quashing the order dated 15.06.2019 passed in BPLE Case No. 21/2017-18 (Annexure-11) passed by the Collector-cum-Divisional Forest Officer, Jamshedpur, Forest Division, Jamshedpur whereby and where under an order of eviction has been passed against the land belonging to the petitioner; iii. For quashing the notice published in local daily new paper ‗Prabhat Khabar‘ dated 03.01.2020 (Annexure-10) wherein the property of the petitioner has been mentioned at Sl. No. 43 of the notice directing to vacate the land in question within a period of one week failing which the same shall be vacated forcefully; iv. For a further direction upon the respondents no. 2 and 3 to carry out a joint inspection/ demarcation of the land belonging to the petitioner so as to ascertain the actual description of the land as well as its nature; And/or v. For issuance of any appropriate writ/order/direction for any other relief(s).‖ Learned counsel for the petitioners has submitted that the

4. present proceeding has been challenged before this Court on the point 3 of jurisdiction. He has submitted that the jurisdictional issue involved in this case is as follows: - ―Whether the Divisional Forest Officer has a jurisdiction to exercise power of a Collector in terms of Section 66A of Indian Forest (Bihar Amendment) Act and thereby whether he could have passed an order of eviction by exercising power of a Collector under the Bihar Public Land Encroachment Act, 1956.‖

5. The learned counsel submits that the Divisional Forest Officer had issued a notice under Section 3 of the Bihar Public Land Encroachment Act of 1956 (hereinafter referred to as the „Act of 1956) as is apparent from the impugned order and the petitioner had duly appeared before the said authority and submitted the documents in connection with the property claimed by them, but the same was not considered and the impugned order has been passed. The learned counsel has also submitted that the petitioners are claiming the property whose details have been described in paragraph 5 of both the writ petitions and from perusal of the impugned order, it appears that the property which is being claimed by the respondent is totally different. He submits that the exact position as to whether the petitioner has encroached upon any of the property claimed by the respondent can be ascertained upon physical verification for which the petitioners are ready. He submits that similar is the situation in connection with other writ petition being W.P. (C) No. 87/2020. Submission of the learned counsel for the petitioner with regard to the jurisdiction 6. The learned counsel for the petitioners has referred to Section 66 of the Indian Forest Act, 1927 and has also referred to Section 66A as introduced vide Bihar Act 9 of 1990 with effect from 10.09.1990 in the Indian Forest Act, 1927. Section 66 and 66A as applicable in the State of Bihar (now Jharkhand) is as follows: - ―66. Power to prevent commission of offence.—Every Forest-officer and Police-officer shall prevent, and may interfere for the purpose of preventing, the commission of any forest-offence. 66A. Eviction of encroachment from Government Forest Land.—(1) Encroachment of Forest Land shall be cognizable and non-bailable offence. 4 Any Forest Officer not below the rank of Divisional Forest Officer, if he has reasons to believe that the encroachment of Government Forest Land has been done, may evict the encroachment and may use all the powers conferred on Magistrate under The Bihar Public Land Encroachment Act, 1956 (Bihar Act XV of 1956).‖ The learned counsel submits that by virtue of Section 66A of

7. the Act, the Divisional Forest Officer had no jurisdiction to initiate a proceeding for removal of encroachment over the forest land, in as much as, the Divisional Forest Officer can neither be said to be a Collector nor has been conferred with the power to exercise the functions of a Collector. The learned counsel submits that by Section 66A, the Divisional Forest Officer has been empowered to exercise the powers of Magistrate under Bihar Public Land Encroachment Act and Magistrate does not have the power to pass an order of eviction. At best, the Magistrate can take up follow up action after an order is passed by the Collector to remove the encroachment. The learned counsel submits that the Divisional Forest Officer ought to have forwarded a report to the Collector for initiation of a proceeding under the aforesaid Act of 1956 and thereafter, upon adjudication and passing a final order by the Collector, power could have been exercised by the Divisional Forest Officer for evicting the person who is found to be in encroachment. The learned counsel, during the course of argument, does not dispute that the Forest land is otherwise covered as „public land‟ within the meaning of Bihar Public Land Encroachment Act, 1956. Arguments of the respondents 8. Learned counsel appearing on behalf of the respondents, on the other hand, has submitted that Section 66A, which has been introduced in Indian Forest Act by way of Bihar amendment, not only empowers the Divisional Forest Officer to evict, but also empowers him to use all the powers conferred on Magistrate under the Act of

1956. The learned counsel submits that the power to evict is vested with that of Collector under the Bihar Public Land Encroachment Act, 5 1956 and the same can be conferred upon any other authority in terms of Section 2(1) of the Act. 9. The learned counsel has referred to definition of “Collector” under the aforesaid Act of 1956 which is quoted as under: - ―(1) "Collector" means the Collector of the district and includes any officer empowered by the State Government to discharge all or any of the functions of the Collector under this Act.‖

10. The learned counsel submits that under the aforesaid circumstances, the Divisional Forest Officer has rightly issued notice under Section 3 of the aforesaid Act of 1956 and thereafter, granted an opportunity of hearing to the petitioners and passed the impugned order. 11. So far as the argument of the learned counsel for the petitioners in connection with the property claimed by the petitioners is concerned, the learned counsel submits that the petitioners are claiming a different property which as per the description is outside the forest land, but on the spot, they have found in occupation of the forest land and therefore, the impugned order has been passed. The learned counsel further submits that the point of jurisdiction be decided in favour of the respondents and the petitioner may avail the alternative remedy of appeal against the impugned order. Rejoinder argument on behalf of the petitioners 12. In response, learned counsel for the petitioners has submitted that upon true interpretation of Section 66A of Indian Forest Act as introduced by the State of Bihar, the power of Collector could not have been exercised by the Divisional Forest Officer. However, the learned counsel has also submitted that the petitioners had also requested for spot inspection, but that was never carried out in presence of the petitioners. The learned counsel has reiterated that the spot at which the petitioners have constructed his house/building is not on the forest land. Findings of this Court 6

13. After hearing learned counsel for the parties and considering the facts and circumstances of this case, so far as the point of jurisdiction is concerned, this Court finds that the Collector has been defined under the provisions of Bihar Public Land Encroachment Act, 1956 as has been quoted above. The Collector not only means the Collector of the district but includes any officer empowered by the State Government to discharge all or any of the functions of the Collector under the aforesaid Act of 1956. This Court further finds that it is not in dispute from the side of both the parties that forest land constitutes „public land‟ and the provisions of Bihar Public Land Encroachment Act, 1956 is applicable. It is further not in dispute that as per the provisions of the Act of 1956, the power to evict has been conferred upon the Collector or any other officer empowered by the State Government, even a notice under Section 3 is to be issued by the Collector as defined under Section 2(1) of the Act of 1956. 14. Upon perusal of Section 66A of the Indian Forest Act, as introduced vide Bihar amendment, this Court finds that any forest officer not below the rank of Divisional Forest Officer has been conferred with the power to evict the encroachment and has also been conferred with the power of a Magistrate under the provisions of Bihar Public Land Encroachment Act, 1956. This Court is of the considered view that by virtue of Section 66A of the Indian Forest Act, as introduced vide Bihar amendment, the Forest Officer not below the rank of Divisional Forest Officer has been empowered to pass an order of eviction and has been empowered to exercise the powers of a Collector. The Collector, as defined under the Act of 1956, has the power to evict and the Collector means not only the Collector of the District, but includes any officer empowered by the State Government to discharge all or any of the functions of the Collector. This court is of the considered view that the State Government has duly empowered the Forest Officer not below the rank of Divisional Forest Officer to pass an order of eviction and therefore the Forest Officer not below the rank of Divisional Forest Officer has the power to exercise the 7 power to evict and exercise all such powers as conferred upon the collector to evict in terms of the aforesaid Act of 1956. Accordingly, this Court is of the considered view that the initiation of the proceedings under section 66A of Forest Act, as introduced by Bihar Amendment, for removal of encroachment by issuing notice under Section 3 of the Act of 1956 and thereafter passing an order for eviction, as has been done in the present cases, is within the jurisdiction of the Divisional Forest Officer. Thus, the point of jurisdiction is decided against the petitioners and in favour of the respondents. 15. After having decided the point of jurisdiction, this Court finds that the description of property with respect to the petitioners, as mentioned in the writ petition, is as follows: - W.P. (C) No.88 of 2020 ―5. That the petitioner states that the petitioner is the rightful owner of the property situated in the District of East Singhbhum, Pargana Dhalbhum, P.S. Parsudih, Mauza Kharkripara, Survey Thana No. 1193, Khatian No. 88 finally published on 24.08.1964 within Plot No. 55, Area at measuring 5 khatas equivalent to 0.08 acre and bound on the North-Road, South-Bihar Sarkar, East-Kaliastan, West-Rest 4 Katthas of land. This land was purchased by the petitioner vide registered sale deed no. 3486/3377 dated 15.03.1974.‖ W.P. (C) No.87 of 2020 ―5. That the petitioner states that the petitioner is the rightful owner of the proper situated in the District of East Singhbhum, Pargana Dhalbhum, P.S. Parsudih, Mauza Kharkripara, Survey Thana No. 1193, Khatian No. 88 finally published on 24.08.1964 within Plot No. 55, Area at measuring 5 Kathas equivalent to 0.08 acre and bound on the North-Road, South-Bihar Sarkar, East-Nij, West-Land proposed to be sold to Promila Devi. This land was purchased by the petitioner vide registered sale deed no. 3487/3378 dated 15.03.1974.‖

16. From perusal of the impugned order, it appears that the respondents are claiming a different property, other than the property claimed by the petitioners in both the cases as mentioned in para 5 above. 17. This Court is of the considered view that the entire dispute as to whether the petitioner has constructed any house/building over the property which is being claimed by the respondent (which falls outside the property as claimed by the petitioners), can be resolved through on the spot inspection to be conducted in presence of the petitioners, the 8 Circle Officer, Government Amin and also one of the authorized officers of the forest department deputed by the Divisional Forest Officer. 18. For the aforesaid purposes, the petitioners are directed to appear before the Circle Officer on 19.06.2023 at 11:00 a.m. The Divisional Forest Officer shall also depute a person on behalf of the Forest Department, who shall appear before the Circle Officer on the aforesaid date and time. 19. Upon appearance of the parties, the Circle Officer shall depute a Government Amin for the purposes of conducting on the spot inspection, measurement and demarcation of property in presence of the aforesaid persons including the petitioners. The preliminary inspection report be prepared on the spot and a copy of which be handed over to the petitioners as well as to the authorized Officer of the Forest Department. A detailed report be prepared thereafter and be also forwarded to the petitioners as well as to the Forest Department through speed-post. Both the reports be also directly communicated to the Divisional Forest officer through the official mode of communication. The entire exercise be completed by 19.07.2023. 20. The petitioners are directed to appear before the Divisional Forest Officer on 26.07.2023 at 11.00 am in their respective case i.e BPLE Case No. 19/2017-18 and BPLE Case No. 21/2017-18 who shall proceed and pass a fresh order in accordance with law and after giving an opportunity of hearing to the petitioners. It is observed that this order has been passed in view of the fact that the claim of the petitioners in connection with the land appears to be different from the claim of the forest department as is apparent from the description of property in the impugned order and paragraph 5 of both the writ petitions. The Divisional Forest Officer while passing of the fresh order will not be prejudiced by the order impugned in the present case in any manner and shall apply his independent mind after granting an opportunity of hearing to both the parties. In order to enable the divisional commissioner to pass fresh orders, the impugned orders 9 passed in BPLE Case No. 19/2017-18 and BPLE Case No. 21/2017-18 are kept in abeyance and will be subject to the fresh order to be passed. The fresh order be passed within a period of one month from

26.07.2023 and be communicated to the petitioners through speed post. 21. In case of any non -cooperation from the side of the petitioners, the impugned orders will revive and the respondents will be free to proceed as per the impugned orders and actions. 22. These writ petitions are accordingly disposed of with the aforesaid observations and directions. 23. 24. Let a soft copy of this order be immediately forwarded to the Pending interlocutory application, if any, is closed. learned counsel for the parties for compliance. Mukul (Anubha Rawat Choudhary, J.)