Dinesh Agarwal v. The State of West Bengal & Ors

Though the petitioner initially challenged the said order before this Court but subsequently withdrew the same. However, in compliance with the said directions the application for correction of Record of Rights was disposed of retaining the classification of the plot as Pahar Jungle. The reliance was placed upon Section 39 of the West Bengal Estate Acquisition Act, 1953 and provisions of Forest (Conservation) Act, 1980. The said order was challenged before the Tribunal in O.A. 2500 of 2015, which was dismissed on 22nd November, 2016. The order of the Tribunal was further challenged before this Court in WPLRT 123 of 2016, which was disposed of on 4th January, 2017 directing the 4 Secretary to the Government of West Bengal, Land Reforms Department consider representation afresh. It is relevant to note that simultaneously the direction was also passed upon Secretary, Commerce Industries Department, Government of West Bengal, to jointly consider the said representation and in the event of disagreement, the matter may be forwarded to the Chief Secretary to the Government of West Bengal for a decision thereupon. The writ petition, which was pending before this Court, was subsequently disposed of in the light of same with stipulation determination has to be made whether the land in question falls within the forest area and if does, then licence for mining should immediately be renewed or revalidated. In the meantime the Principal Secretary, Land Reforms Department and the Secretary, Commerce Industries Department disagreed decision and the matter was referred to the Chief Secretary. Ultimately vide order dated 28th April, 2017 the Chief Secretary to the Government of West Bengal agreed with the views of the Principal Secretary, Land and Land Reforms and Refugee Relief and Rehabilitation Department and Land Reforms Commissioner and held classification cannot be changed without following the due process of law. The said order was further challenged in a writ petition being W.P. 4421 (W) of 2018 before this Court, which was again disposed of granting liberty to the petitioner to challenge the order of the Secretary to the Government of West Bengal before the Tribunal. The Tribunal rejected the Original Application on 5 the ground that in the event of conflict between the entry made in C.S. Record of Rights and R. S. Record of Rights, the later would prevail and, therefore, the presumptive value of correctness in the entry is to be upheld. Both the parties have extensively made argument and in course of hearing it transpires that the mining activities was being carried on since

#1942. It is pertinent to record that the land in question was within the territorial limit of the State of Bihar and by virtue of Section 14 of the Bihar Private Forest Act, 1946 the notification was published inviting objections as to why the plots mentioned in the schedule thereto cannot be declared as private forest. None of the parties have disputed that the disputed plot is within the schedule. Subsequently by virtue of the State Reorganization Act the District of Purulia has been included within the territorial limit of State of West Bengal in the year 1964 and it is not in dispute that it was subsequently treated to have been vested with the State of West Bengal. The West Bengal Estate Acquisition Act, 1953 was in operation and in view of the provisions contained therein and in absence of any option having exercised to retain the land, the same stood vested, Since the property was treated to have been vested, the mining lease was issued in the year 1994 in favour of the writ petitioner and was continued from time to time, there is no document forthcoming from the end of either of the parties which may remotely throw a light on the fact that after the notification issued under Section 14 proposing to declare the land as private protected forest no final publication has been made. It thus apparent in absence of 6 publication the notification under Section 30 of the Bihar Private Forest Act, 1946 does not ipso facto lead to final declaration of the land to be a forest. In this regard the reference can be made to three Bench decision of the Supreme Court rendered in case of State of Bihar vs. K.S.R. Swami reported in AIR 1966 SC 1847, wherein it is held: “9. It is abundantly notification under the proviso is not intended to amount to a final constitution of the private forest as a private protected forest. The notification under the proviso is to be made only ‘pending the completion of the said enquiries, procedure and appeals’. Quite clearly, these enquiries, procedure and appeals are not stopped by the declaration under the proviso. They have to be completed and it is only after their completion that a notification can be made by the Government under the main part of the section. On a reasonable reading of the section it is therefore abundantly clear that even where the Government thinks fit to make a declaration under the proviso, this will have effect only so long as the period fixed under S. 16 for preferring claims (i) has not expired; (ii) claims under Ss. 16 and 22 have not been disposed of; (iii) the periods limited by S.27 for appealing from the orders passed in respect of those claims have not elapsed and (iv) all appeals preferred against such orders have not been disposed of.

#12. This argument is in our opinion wholly unacceptable. Considered in the background of the provisions in the Act for claims to be made under S. 16, for enquiry into these by the Forest Officer and thereafter for appeals from the decision of the Forest Officer, after the completion of all of which only final notification 7 constituting the private forest a private protected forest can be made, it is clear that rights ‘other than landlords’ rights’ in respect of which no claim has been preferred under S.16 or which have not been disclosed by enquiry under S.17 intended by legislature to be extinguished only after the final notification is made. It is to be noticed that three months’ time from the date of the proclamation under S.16 is to be allowed for making claims. The enquiry under S.17 can start only after these claims have been made and some more time must elapse before an enquiry can be completed into the existence of rights which have not been claimed under S. 16. A notification under the proviso of S. 30 can however be made at any time after notification under S.14 has issued. It meaningless to speak of rights in respect of which no claim has been preferred under S.16 and of the existence of which no knowledge has been acquired by an enquiry under S. 17, before the period for the enquiry under S.17 has expired. Again, there will be no extinction of rights, under S. 19, if the person claiming the rights satisfied the Forest Settlement Officer that he had sufficient cause for not preferring the claim within the period fixed under S. 16. The question of thus satisfying the Forest Settlement Officer can clearly not arise before the period fixed under S. 16 has expired. All this clearly shows that the extinction of rights under S.19 can take place only after the final notification under S.30 has been published.” The subject property appears to have been vested under Section 5 of the West Bengal Estate Acquisition Act, 1953 and the Record of Rights was 8 corrected after the area in which the subject property is situated is included in the territorial limit of the State of West Bengal; the R.S. Record of Rights was corrected which is apparently distinct and different from the entry made in the C.S. Record of Rights. There is no document forthcoming nor has been disclosed in the impugned order passed by the concerned authority, the Chief Secretary to the Government of West Bengal, that the subject property is comprised within the forest, although the same was sought to be categorized as private forest under the Bihar Private Forest Act, 1946. As indicated above in the judgement of the Supreme Court, unless the final publication is made under Section 30 of the Bihar Private Forest Act, 1946, mere publication under Section 14 thereof does not ipso facto render the said land as forest or at best the private forest owned by the individual. We do not find any document in support of the change in the entry having made in the R.S. Record of Rights; more particularly the documents which are required in this regard. As indicated above, the order of the Chief Secretary to the Government of West Bengal cannot be sustained. Section 44(2a) of the West Bengal Estate Acquisition Act postulates the revision of the entry made in the record finally published and, therefore, we do not find any impediment in taking a conscious decision in the light of the observations made hereinabove under the aforesaid provision. The order of the Chief Secretary dated 28th April, 2017 is quashed and set aside. The matter is relegated to the Chief Secretary to the Government of West Bengal to revisit and reconsider the said application and dispose of the 9 same after giving an opportunity of hearing to the writ petitioner as well as the interested persons within four months the date of communication of this order by recording proper reasons. The writ petition is thus allowed. There will, however, be no order as to costs. (Harish Tandon, J.) (Rabindranath Samanta, J.)