Bokaro v. 1. The State of Jharkhand through its Secretary, Department of Forest, Government of Jharkhand
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(C) No. 5118 of 2016 Manoj Kumar, S/o: Sri Bhola Nath Choudhary, R/o: Chas, P.O. and P.S. Chas, Dist: Bokaro. Petitioner … … Versus 1. The State of Jharkhand through its Secretary, Department of Forest, Government of Jharkhand, Nepal House, P.O. and P.S.- Doranda, District- Ranchi. 2. The Divisional Forest Officer, Bokaro Forest Division, P.O. and … Respondents P.S. Chas, Dist: Bokaro. --- CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY --- : Mr. V.P. Singh, Sr. Advocate : Mr. Praveen Akhauri, S.C. Mines-I : Mr. Sharabhil Ahmed, A.C to S.C. Mines-I --- For the Petitioner For the Resp.-State … 13/24.10.2024 1. 2. Heard the learned counsel for the parties. This writ petition has been filed for the following reliefs:- the respondents not “For issuance of a writ of mandamus or in nature thereof commanding/directing upon to object/interfere/obstruct any construction over the land of the petitioner bearing Khata No- 48, Plot No-370, Area-57 decimals and another plot No- 321, Area 09 decimals as the same has already been mutated in the name of petitioner and the petitioner is paying rent regularly over and above that the same is in peaceful possession of the petitioner since long. AND A further direction upon the respondents to issue 'No objection' to the petitioner so far as the aforesaid land is concern. AND/OR to pleased Be other pass order(s)/writ(s)/direction(s) as Your Lordships may deem fit and proper in the facts and circumstances of this case and in the interest of justice.” such any 3. It is submitted that the petitioner property being old Khata No. 48 old Plot No. 370 area 57 decimals and Plot No. 321, area 9 1 decimals i.e. total 66 decimals at Mouza Kamaldih, P.S. Chas District- Bokaro vide registered sale deed no. 6134 dated 10.07.1985. The petitioner came in actual physical possession of the property and applied for mutation which was allowed by the Circle Officer. As per recent survey the land purchased by the petitioner was given a new khata number and plot number for which separate khaitan was given in which there were some errors. Consequently, the petitioner filed cases before Assistant Settlement Officer, Dhanbad bearing Case No. 5851 of 1988 and 5858 of 1988 under section 89 of Chota Nagpur Tenancy Act. In the said case notices were issued to the Forest Department but the Forest Department after appearing for a few days did not participate in the proceeding and later notice was issued to one Shiv Prasad Mahto who also did not appear in the proceedings. The case was allowed in favour of the petitioner and a direction was issued to make correction and open a separate khaitan for the land of the petitioner which was done on 17.11.2014 (annexure-4). After final Raiyati Kahtian and after publication of the same in Gazette, the Forest Department did not challenge the same before any competent court of law and the Government of Jharkhand has been accepting rent from the petitioner by issuing rent receipt. The learned counsel has submitted that the aforesaid proceeding under section 89 of Chota
Legal Reasoning
Nagpur Tenancy Act attained finality. 4. With the aforesaid background, the learned counsel for the petitioner submits that the petitioner is in possession of property being old Khata No. 48 old Plot No. 370 area 57 decimals and Plot No. 321, area 9 decimals i.e. total 66 decimals which was allotted a new Khata No. 82, Plot No. 84/789 (Annexure-4). 5. The grievance of the petitioner and the cause of action to file this writ petition has been mentioned in paragraph 15 and 16 of the writ petition. A statement has been made in paragraph 15 and 16 of
Decision
the writ petition that the respondent forest department has been acting in total callous and in a malafide manner by seizing the articles and materials over the aforesaid land of the petitioner and they have been 2 objecting to any construction over the aforesaid land of the petitioner. It has also been stated in paragraph 16 that the petitioner has dumped bricks and other materials for construction over his land but every time the Forest Official and their guards seized the entire materials and articles for construction and compelled the petitioner to stop the work. On several occasions the labour was also assaulted and out of fear they ran away. The learned counsel for the petitioner submits that the petitioner is seeking a direction upon the respondents not to object/interfere/obstruct any construction over the land of the petitioner. The learned counsel has also submitted that the action of the respondent is arbitrary and therefore, the petitioner is entitled for the relief as prayed for in this writ petition. 6. The learned counsel appearing on behalf of the respondent has referred to the counter affidavit paragraph 29 and 30 to submit that the statements made in paragraph 15 and 16 of the writ petition has been denied and it has been stated that the petitioner is not in actual physical possession over the land and he is making a false claim over the said piece of land and it has been claimed that the land is a protected forest. 7. In response the learned counsel for the petitioner has referred to the paragraph 11 and 12 of the rejoinder and has submitted that a notification under section 29 of Indian Forest Act was issued declaring five plots including plot No. 370 as protected forest but the said notification was issued without any enquiry into right of the government and private individuals. By the said notification itself the Forest Settlement Officer was appointed for enquiring into the right of the government and private individuals and a forest case was initiated being F.S 55 of 1963-64. It has been asserted in paragraph 12 of the rejoinder that after an inquiry on 28.11.1964 the Forest Settlement Officer has declared all the five plots including plot No. 370 as Raiyati land. It is also submitted that in the year 1984 one B.P.L.E. Case No. 13 of 1984 initiated under Bihar Public Land Encroachment Act was dropped observing that plot No. 370 is not a public land and finally 3 the appeal preferred against order by Divisional Forest Officer being M.R.A. Case No. 46 of 1984 was also dismissed. It has been submitted that the respondents have purposely not disclosed the order passed in W.P.(C) No. 6052 of 2007 in the case of one Bharat Singh which was relating to plot no. 370 area 0.52 decimal of the same mouza and plot as that of the petitioner. It has also been submitted that the facts mentioned in the rejoinder to the counter affidavit has been suppressed by the respondents in their counter affidavit with the sole intention to misguide this Court. 8. During the Court hearing, the learned counsel for the petitioner has submitted that averments made in paragraph 11 and 12 of the rejoinders is in relation to some other persons with whom the petitioner is not connected but plot no. 370 is the same. 9. learned counsel for After hearing the the parties and considering the facts and circumstances of this case, this Court finds that the cause of action for filing the writ petition was that the respondent department were disturbing the petitioner on spot with respect to the properties mentioned above. Averments made in paragraph 15 and 16 of the writ petition disclosing the cause of action to file this writ petition is quoted as under: - “15. That it is stated and submitted that the respondent Forest Department has been acting in a total callous, malafide manner by seizing the articles and materials over the land of the petitioner and have been objecting for any construction over the land of the petitioner. 16. That it is stated and submitted that on several occasions the petitioner has dumped bricks and other materials for constructing over his aforesaid land, but every time the Forest Officials and their guards seizes the entire material and articles for constructing and compelled the petitioner to stop the work. On several occasions the labourers were also assaulted and out of fear they ran away.” 10. The response of the respondents in the counter affidavit is in paragraph 29 and 30 which are quoted as under: - 29. That in reply to paragraph 13 & 15 of the instant writ application humbly stated and submitted that the averments 4 made here are incorrect, wrong, vehemently denied and disputed. The petitioner is not in actual physical possession over the said land and he is making a false claim over the said piece of land. The land in question is protected Forest land. The Forest officials have seized the materials since petitioner was making an attempt to encroach upon the said land forcibly and he was adamant to grab the said land unlawfully. 30. That in reply to paragraph 16 & 18 of the instant writ application it is humbly stated and submitted that the averments made here clearly proves that petitioner is not in possession over the said piece of land and he is trying to forcibly occupy the land and his unlawful attempts were resisted by Forest Officials. That the statements made in this paragraph totally demolishes the claim of petitioner of possession over the said land. Hence writ is fit to be dismissed. The Forest Officials are protecting the Government properties and protected Forest and they are performing their duties with utmost sincerity. 11. This Court finds that the respondent in the counter affidavit has disputed the allegations made in paragraph 15 and 16 of the counter affidavit. This Court is of the view that the law is well settled that if the right of the petitioner or any other person in connection with one or the other property has been crystalized finally then under no circumstances the respondents including State can disturb such person without taking resource to law. Further, it is not clear from the records as to whether the exercise of right by the petitioner on the spot falls within the property claimed by the petitioner. The respondents have disputed not only the title of the property claimed by the petitioner but have also disputed their possession on the spot. 12. In the judgment annexed by the petitioner as contained in Annexure-6 [W.P.(C) No. 6052 of 2007], the proceeding was initiated under Public Land Encroachment Act for eviction and notice was issued restraining the petitioner of the said case namely, Bharat Singh, from construction in relation to part property of plot no. 370 was also under challenge. In the said judgement, pendency of title suit in connection with plot no. 370 was noted along with the order passed in 5 Forest Settlement Case No. 55/63-64 and B.P.L.E. Case No. 13/1984. In the said judgment it was also observed that unless the issue of title or ownership or the nature of land is decided, it will be in the interest of justice to keep the impugned notice and the order under challenge in abeyance. The following observation have been made by this Court in paragraph 5 and 6 which are quoted as under:- “5. There is no dispute about the fact that the Forest Settlement Officer in its order passed in Forest Settlement Case No. 55/63-64 decided that Plot No. 370 was raiyati and in case the Forest Department wanted to get right title over the land they should acquire the land in a legal manner. The fact remains that the earlier proceeding against the vendor of the petitioner in B.P.L.E. Case No. 13/1984 was directed to be dropped since neither the title was clear nor the land in question was public land and even the appeal preferred by the D.F.O. was rejected vide order dated 11.9.85 and I am informed that a second appeal has been filed which is pending. In any even the fact remains that the title suit no. 18/1980 has been preferred by the Forest Department which is pending adjudication. 6. Considering the aforesaid facts and circumstances of the case, unless the issue of title or ownership or the nature of land is decided, it will be in the interest of justice to keep the impugned notice and the order under challenge in abeyance.” 13. In the present case, no notice or proceeding is under challenge and the respondents do not admit that the petitioner is in possession with respect to the property in which the petitioner is seeking to make construction. The nature of relief prayed for is essentially seeking injunction against the respondents and the respondents have disputed the right, title, interest and possession of the petitioner and even physical boundaries of the property claimed by the petitioner as it stands on the spot is not clear from the records. There is nothing on record to show that the spot of construction falls within the boundary of the property claimed by the petitioner. In the aforesaid facts and circumstances, the judgement of this court in W.P.(C) No. 6052 of 2007 does not help the petitioner as in the said case the possession of the writ petitioner with respect to the property involved was not in 6 dispute as proceedings for eviction were initiated against the petitioner by the respondents in connection with the property involved but in the present case even the possession of the petitioner with respect to the property is in dispute. This Court is of the considered view that the nature of disputes involved in the present case cannot be adjudicated under writ jurisdiction and no relief as prayed for by the petitioner can be granted by this Court. 14. In view of the aforesaid facts and circumstances, the reliefs as prayed for by the petitioner under Article 226 of the Constitution of India cannot be granted. Accordingly, this writ petition is dismissed. 15. However, dismissal of this writ petition will not an impediment for the petitioner to seek his remedy through a competent court of civil jurisdiction. 16. 17. Interim order passed by this court is vacated. Pending interlocutory application, if any, is dismissed as not pressed. Rakesh/- (Anubha Rawat Choudhary, J.) 7