Makhu Gope @ Makhan Gope … … v. 1. The State of Jharkhand 2. The Principal Chief Conservator of Forest, Jharkhand, Ranchi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (C) No. 1747 of 2004 ----- Makhu Gope @ Makhan Gope … …. Petitioner Versus 1. The State of Jharkhand 2. The Principal Chief Conservator of Forest, Jharkhand, Ranchi 3. The Divisional Forest Officer, Hazaribagh … …. Respondents ----- CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ----- : Mr. Indrajit Sinha, Advocate : Mr. Suresh Kumar, SC (L&C)-II ----- For the Petitioner For the State Oral Order 25 / Dated : 22.04.2024 Heard the parties. 1. The instant writ petition has been filed for an appropriate direction to the respondents authorities to show cause as to under what authority the respondents were demarcating the land of the petitioner situated at Khata No. 103, Village Koshamba, PS Kathkamsandi, District Hazaribagh admeasuring 4.25 acres as forest land. 2. The claim of the petitioner hinges on the order dated 22.12.1962 passed by the Forest Settlement Officer in Case No.344 of 1962-63, whereby and where under the said land was released by the Forest Department in favour of the father of the petitioner. The father of the petitioner namely, Chamtu Mahto had acquired the said land on the basis of settlement by the ex-landlord in the year 1936, and the said property was inherited by the petitioner along with his brother namely, Jageshwar Gope and since then they are in peaceful possession of the said land. The petitioner is aggrieved by the move of respondent authorities to demarcate the said land. 3. The case of the respondents Forest Department is that the land in question was a notified forest area as protected forest under Section 29(3) of the Indian Forest Act vide notification dated 02.01.1953 (Annexure-A). It has been pleaded in the counter affidavit that there is typographical error in the number as given of plot to be 1686 in the notification which is 1586 which will be clear from the map (Annexure-B). 4. The claim of the land by way of settlement in 1936 is based on forged and fabricated document as the land was at the relevant time under the Court of 1 Ward and the Estate i.e. Ramgarh Estate, and therefore it could not have been settled by the ex-landlord. Later on it vested in the State of Bihar under Bihar Land Reforms Act, 1950. In the year 1953 notification under Section 29 of Indian Forest Act, has been issued declaring the said land to be forest land. It was throughout a forest land and had never come in possession of the appellants. 5. At no point of time, the land in question was actually released in favour of the petitioner. The said order dated 22.12.1962 was certainly a manufactured document. The order of forest settlement case no.344/62 – 63 was not available in the office of Divisional Forest Officer, Hazaribag West division. 6. In the supplementary counter affidavit dated 19.02.2019 it has been pleaded that physical verification of the land in question was made in presence of Mankhu Gope, and the Geo co-ordinates of the plots were taken, the data thus obtained was overlaid on the forest map and it was found that the entire piece of land claimed by the petitioner within the demarcated forest land in plot no.1586 and was a notified protected forest by notification dated 2nd January 1953. In the year 2003–04, plantation activities had been carried out by the forest Department under, ―Rehabilitation of Degraded Forest Scheme‖ and even today some of the trees planted were seen standing with intermittent gaps. Majority of the land was covered by vegetation predominantly of sal plants. 7. It is argued by the learned Counsel on behalf of the Petitioner that under Section 29 (3) of the Indian Forest Act, no such notification can 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. 8. Main thrust of the argument on behalf of the Petitioner is that land in question has been declared to be protected forest without following the mandate of law. In order to declare a protected forest, it is necessary that land in question was a Govt. land and without this determination in a land survey proceeding, notification of protected forest was liable to quashed. The said argument is made by referring to the proviso to Section 29 of the Indian Forest Act, 1927 (Hereinafter Act, 1927).
Legal Reasoning
determine the propriety rights, and it is settled law that the entries made in the records of right are not an evidence of title. The object of survey settlement under Chapter XII of the CNT Act, 1908 was to prepare the record of rights and for the settlement of rents. The particulars to be recorded are detailed under Section 81 of the CNT Act which includes the following: (m) the existence, nature and extent of the right of any person whether landlord or tenant or not, to take forest- produce from jungle-land or waste-land, or to graze cattle on any land or to take fish from any water, or of any similar right in any village in the area to which the record-of- rights applies; (n) the right of any resident of the village to reclaim jungle-land or waste- land or to convert land into korkar. The above provisions clarifies the intent of the legislature to include the requirement of enquiry of the rights of the Govt. and of private persons over the forest land in a survey settlement proceeding. It does not talk about propriety right, but was confined to subjects as referred to above in clause (m) and (n) which are in the nature of forest rights. These are not remotely connected with propriety right, but is concerned with the rights of the individuals and communities over forest which they were traditionally enjoying. 12. Furthermore, legislative intent is evident from the expression not to abridge or affect any existing rights of individuals or communities which can only mean such right as to refer in the context of other rights as referred to in Section 32 of the Act, 1927. Under Section 32, the State Govt. has a right to frame rules to regulate the following matters, namely:— 4 (a) the cutting, sawing, conversion and removal of trees and timber, and the collection, manufacture and removal of forest-produce, from protected forests; (b) the granting of licences to the inhabitants of towns and villages in the vicinity of protected forests to take trees, timber or other forest- produce for their own use, and the production and return of such licences by such persons; (c) the granting of licences to persons felling or removing trees or timber or other forest-produce from such forests for the purposes of trade, and the production and return of such licences by such persons; (d) the payments, if any, to be made by the persons mentioned in clauses (b) and (c) for permission to cut such trees, or to collect and remove such timber or other forest-produce; (e) the other payments, if any, to be made by them in respect of such trees, timber and produce, and the places where such payment shall be made; (f) the examination of forest-produce passing out of such forests; (g) the clearing and breaking up of land for cultivation or other purposes in such forests; (h) the protection from fire of timber lying in such forests and of trees reserved under section 30; (i) the cutting of grass and pasturing of cattle in such forests; (j) hunting, shooting, fishing, poisoning water and setting traps or snares in such forests and the killing or catching of elephants in such forests in areas in which the Elephants’ Preservation Act, 1879 (6 of 1879), is not in force; (k) the protection and management of any portion of a forest closed under section 30; and (l) the exercise of rights referred to in section 29. What is significant to note is the reference of rights under Section 29 of Indian Forest Act, 1927 along with other matters referred to above from (a) to (k). Read as a whole and applying the principle of ejusdem generis the rights under Section 29 of the Act, 1927 can only mean right of the like nature as discussed from (a) to (k). Thus the interpretation as suggested by the learned 5 counsel on behalf of the Petitioner is not in accord with the scheme of the Forest Act, 1927 as a whole and Section 29 of the Act, 1927 in particular. 13. Therefore, the argument that the notification of protected forest was without determination that land in question was a Govt. land in survey settlement operation, is entirely misconceived and is accordingly rejected. Fact of the matter is that the Petitioner is staking claim over a duly notified forest land on the basis of a document of release by the forest department. There is no further evidence to show that after the said release, the Petitioner acquired any raiyati right over the land in question or that after the release they were accepted as tenant and they ever paid rent to the State. A gazette notification issued more than forty years ago declaring the land in question to be a forest land, cannot be brushed aside on such flimsy grounds relying on documents of doubtful authenticity (Refer to Rohit Singh v. State of Bihar, (2006) 12 SCC 734). Writ Petition is shorn of merit and is, accordingly, dismissed.
Arguments
9. Learned Counsel on behalf of the State has defended the impugned order. It is 2 submitted that land in question was declared as protected forest duly notified and published in the year 1953 and there was a presumption in its due notification over a Govt. land. Onus lies on the party who intends to rebut the presumption. In the present case the Petitioner has relied on one document on the basis of which it is claimed that the land was released by the forest department. There is no further evidence to show that after the said release the Petitioner acquired any raiyati right over the land in question. There is no evidence to show that after the release they were accepted as tenant and they ever paid rent to the State. As a matter of fact the said document of release is a manufactured document to stake claim over the forest land. Nature of inquiry contemplated under Section 29 of the Act, 1927 is not to determine the propriety right of the State, but regarding the forest rights of the community as held by this Court in Cr.M.P. No. 1751 of 2022 and analogous matters vide order dated 10.10.2023. 10. In order to appreciate the argument raised on behalf of the Petitioner it will be desirable to extract the provision under Section 29 of the Act, 1927 which reads as under : ―(1) The 1[State Government] may, by notification in the 2[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. (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 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 3 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. 11. The plea that notification has been made without determining the proprietary right of the State over the land in a survey settlement proceeding is flawed to the core. This stems from a fundamental misconception of the object of survey settlement proceeding and the nature of inquiry contemplated under Section 29(3) of the Act, 1927. The object of survey settlement operation is not to
Decision
Pending I.A., if any, stand disposed of. AKT/Sandeep Uploaded (Gautam Kumar Choudhary, J.) 6