Most. Kanak Lata Devi @ Kanak Lata Acharya, aged about 70 years d/o late v. 1. The State of Jharkhand through The Secretary, Department of Forest and Environment Department
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) L.P.A. No.403 of 2022 Most. Kanak Lata Devi @ Kanak Lata Acharya, aged about 70 years d/o late Debendra Nath Ghosal, w/o now late Bagal Chandra Acharya, r/o House No.514, Main Road Chas, PO & PS-Chas, District-Bokaro, Jharkhand, Pin Code No.827013 ……Petitioner/Appellant Versus 1. The State of Jharkhand through The Secretary, Department of Forest and Environment Department, Nepal House, PO & PS-Doranda, District-Ranchi, Jharkhand 2. The Divisional Forest Range Officer, Bokaro at Chas, PO & PS-Chas, District-Bokaro, District-Bokaro, PIN-827013 3. The Range Forest Officer, Bokaro at Chas, PO & PS-Chas, District- Bokaro, Jharkhand, Pin Code-827013 4. The Deputy Commissioner, Bokaro at Chas PO & PS-Chas, District- Bokaro, Jharkhand, Pin Code-827013 5. The Land Acquisition Officer, Bokaro at Chas PO & PS-Chas, District- Bokaro, Jharkhand, Pin Code-827013 6. The Circle Officer, Bokaro at Chas PO & PS-Chas, District-Bokaro, Jharkhand, Pin Code-827013 …... Respondents
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY For the Appellant For the Respondents : Mr. Niladri S. Mukherjee, Advocate : Mr. Nehru Mahto, AC to GP-IV --------------
Decision
O R D E R 12th September 2023 The appellant has challenged the order dated 29th August 2022 by which W.P(C) No.3898 of 2021 seeking a direction upon the respondents to remove illegal constructions or in the alternative to pay adequate compensation has been dismissed. 2. In W.P(C) No.3898 of 2021 the writ Court has dealt with the aforesaid prayer in the following manner: “5. The petitioner claims raiyati right and title over the land in question. According to the petitioner, five numbers of double storied quarters have forcibly been constructed by the Forest Department, Chas, Bokaro in the year 2020 (during Covid-19 pandemic) for accommodation of Foresters and Forest Guards over the aforesaid plot despite resistance made by her. 6. Having heard learned counsel for the parties and keeping in view that the petitioner has claimed raiyati right over the land on which five numbers of double storied quarters for accommodation of Foresters and 2 L.P.A No.403 of 2022 Forest Guards have already been constructed by the Forest Department, Chas, Bokaro, this Court is not inclined to entertain the present writ petition so as to adjudicate the rival claim of the parties with respect to title of the same. The petitioner is, however, at liberty to take recourse before the competent court of civil jurisdiction on the present issue. 7. The writ petition is dismissed as not maintainable with aforesaid liberty.” 3. Mr. Niladri S. Mukherjee, the learned counsel for the appellant submits that now this stands admitted that a part of the lands comprised under Khatian No.444, Plot No.7397 of Mouza Chas (Mouza No.30), Pargana-Khaspol measuring about 2.08 acres is in possession of the Forest Department and while so the State must pay compensation to the appellant. 4. The appellant has pleaded that the property comprised under Khatian No.444, Plot No.7397 of Mouza Chas (Mouza No.30), Pargana- Khaspol within the district of Bokaro was recorded in the name of Sarbeshwar Ghosal, Kangal Ghosal and Lakhi Ghosal all sons of late Chakranath Ghosal. This entry was made in the Cadastral Survey Settlement of 1908 and since then the recorded tenants were in peaceful possession over the aforesaid property. The appellant has further pleaded that Kangal Ghosal and Lakhi Ghosal died issueless long back and their shares devolved upon Sarbeswar Ghosal who thus became sole owner of the said property. Later on, Sarbeswar Ghosal also died leaving behind a sole survivor his son Debendra Nath Ghosal and the appellant claims that she is the only daughter of Debendra Nath Ghosal. Mr. Niladri S. Mukherjee, the learned counsel for the appellant submits that the appellant is an illiterate rustic villager who was unaware of her rights and the respondents taking benefit of the same have illegally grabbed her property without paying any compensation to her. The learned counsel for the appellant has referred to the judgments in “Shabir Ahmad Yatoo v. UT of J&K and Ors.” (2022) Livelaw JKL 52 and “K.T. Plantation (P) Limited v. State of Karnataka” (2011) 9 SCC 1 to submit that a property right which is a constitutional right of every citizen of this country cannot be snatched away without following the procedure in law. According to the learned counsel for the appellant, the procedure which has been laid down in the Land Acquisition Act, 1894 was never followed and a part of 3 L.P.A No.403 of 2022 the property of the appellant has been illegally taken over by the respondents. 5. A writ Court exercising the powers under Article 226 of the Constitution of India is not entitled to decide the dispute relating to property unless the same is admitted by the respondent. No doubt every dispute on facts shall not denude the writ Court from exercising its powers under Article 226 of the Constitution of India and in appropriate cases notwithstanding some dispute sought to be raised by the respondent the writ Court shall enter into the realm of so-called disputed facts and may grant relief [refer, “ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd.” (2004) 3 SCC 553]. However, this is a policy of the law that before the writ Court decides to exercise its powers it is necessary to examine whether there are foundational facts and whether the relief sought is not barred by any law. This is also true that the petitioner cannot seek writ remedy as a matter of right and the writ Court may decline to grant relief even though an arguable case has been made out by the petitioner. 6. Therefore, wherever it is necessary the writ Court shall invite the respondent to file a counter-affidavit and produce the records. Having regard to the aforesaid practice adopted in the writ proceeding, a coordinate Bench of this Court directed the respondents to file a counter- affidavit. 7. In the counter-affidavit, the respondents have pleaded that vide Notification dated 12th March 1948 published in the Bihar Gazette a vast chunk of land in village-Chas, Pargana-Khaspol (at that time district Manbhum) was acquired. It is further stated that about 1.025 acres land which belonged to the ancestors of the appellant was bounded on the North by the settlement under Plot No.7397 and 7393; on the East by the PWD Road; on the South by the settlement Plot No.7848 and 7393 and; on the West by Plot No.7393. This piece of land was notified to be acquired by the Government of Bihar for the purpose of construction of the quarters of Forest Guards at village-Chas. It is further stated that a notification under section 4 of the Land Acquisition Act, 1894 was issued 4 L.P.A No.403 of 2022 and the process of acquisition was completed. 8. The learned counsel for the appellant submits that except the Notification dated 12th March 1948 no other document has been produced by the respondents to establish that 1.025 acres of land within the subject property was acquired by the respondents or that any compensation was paid to the landholders. The learned counsel for the appellant has also referred to the “Mauza Map Sheet” to indicate that the quarters for Forest Guards are already constructed adjacent to the property of the appellant. 9. Now in the first place, this cannot be decided in a writ proceeding that the appellant who is aged about 70 years and now a widow is the sole legal heir and successor of Debendra Nath Ghosal. This is so also for the reason that the subject property was recorded in the name of three persons and this is the statement made by the appellant that two of them, namely, Kangal Ghosal and Lakhi Ghosal have died issueless. Secondly, as the statements made in the counter-affidavit indicate section 4 notification was issued on 12th March 1948 and going by her own accounts the appellant was not even born on that day. Now a submission that the respondents have not produced the documents to conclusively establish that 1.025 acres of land out of the subject property was acquired and compensation was paid cannot be gone into – no such enquiry is contemplated in a writ proceeding. 10. The writ Court’s order is well reasoned and we do not find any error in the order dated 29th August 2022 by which W.P (C) No.3898 of 2021 has been dismissed. 11. In view of the above, L.P.A No.403 of 2022 is dismissed. (Shree Chandrashekhar, J.) Sudhir/NAFR (Anubha Rawat Choudhary, J.)