Mantu Gopal Deogharia & Anr vs The State Of West Bengal & Ors
2022 Latest Caselaw 4279 Cal

                    IN THE HIGH COURT AT CALCUTTA
                   CONSTITUTIONAL WRIT JURISDICTION
                             APELLATE SIDE


  The Hon'ble JUSTICE SUVRA GHOSH

                              CAN No. 1 of 2022
                                      In
                             W.P.A. 14241 of 2021

                          Mantu Gopal Deogharia & Anr.
                                       Vs.
                         The State of West Bengal & Ors.


  For the Petitioners:                 Mr. Rahul Karmakar, Adv.
                                       Ms. Tannistha Bandhyopadhyay, Adv.,



  For the State:                       Mr. C.C. De, Adv.
                                       Mr. Soumitra Bandyopadhyay, Adv.
                                       Mr. Priyabrata Batabyal, Adv.,


  Hearing Concluded on:                13.07.2022

  Date:                                18.07.2022



SUVRA GHOSH, J. :-

1. In the present application, the applicants have sought to add themselves as

  party respondents to the writ petition on the ground that they are necessary

and proper parties herein. Learned counsel for the applicants submits that

the entire plot no. 164 has been declared as "protected forest' by virtue of

notification published in the Calcutta Gazette on May 17, 1956 and the land

is vested with the Government since then. Section 29 (1) of the Indian Forest

Act, 1927 demonstrates that the State Government may by notification

declare the provisions of Chapter- IV of the Act 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. According to learned counsel, the term "property of Government"

indicates vested land. Learned counsel has submitted that as the plot in

question is vested with the forest department by virtue of notification dated

May 17, 1956, the applicants are necessary parties to the writ petition and

should be granted an opportunity of hearing when the writ petition is dealt

with.

2. Per contra, it is submitted on behalf of the opposite parties/writ petitioners

that the Act of 1927 is bereft of any provision for vesting of land. The names

of the petitioners appear as occupiers in the C.S. and R.S. record of rights

indicating that the portion of the plot owned and occupied by them have not

been vested. The petitioners' plot has been recorded as baid in the record of

rights and does not form part of the land declared as protected forest by the

State.

3. Placing reliance on the authorities in Rajkumar Rajinder Singh v/s. State of

Himachal Pradesh and Others reported in (1990) 4 Supreme Court Cases

320 and M/s. Jetmull Bhojraj v/s. The State of Bihar and Others reported

in 1966 SCC Online Pat 85, learned counsel has submitted that there is no

provision in Chapter-IV for transfer of possession of any property in favour

of the Government by virtue of notification under section 29. The proviso to

the section can at best authorise the Forest Officer to prevent felling, selling

or appropriating forest trees pending inquiry into the matter. As such, the

applicants have no role to play in the present writ petition which is primarily

for compliance of a direction of a coordinate bench of this Court passed by

an order dated 31st July, 2019 passed in W.P. 2819 (W) of 2018. Learned

Counsel has further submitted that in view of construction of a super

speciality hospital in the plot in question, the said plot cannot be said to be

included in "protected forest".

4. Section 29 of the Indian Forest Act, 1927 is set out:-

                                    "29.   Protected     forests.    -   (1)   The   [State

                                    Government]     may, by notification in the

[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 forests produce of which the

Government is entitled.

(2) The forest-land and waste-lands

comprised in any such notification shall be

called a "protected forests".

(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 that they will occupy such length of time

as in the mean time 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."

5. The provision clearly demonstrates that the provisions of Chapter-IV shall

be declared to be applicable by notification to any forest land which is the

property of the Government or over which the Government has proprietary

rights. Taking into account the submission made on behalf of the applicants

that the term "property of Government" indicates that the property is vested

land, there is no document on record which suggests that the portion of the

property occupied by the petitioners has been vested with the Government.

The Act of 1927 is bereft of any provision for vesting of land by the Forest

Department. Had such provision been made available in the Act itself,

vesting proceeding under the West Bengal Land Reforms Act, 1955 would

not have been initiated against one Tulshibala Kundu in respect of portions

of the plot in question. It is also not clear as to how a portion of the plot was

made over for construction of a super speciality hospital despite the same

being declared as protected forest. There is nothing on record to indicate

that inquiry with regard to the nature and extent of the right of Government

and of private person was held in terms of section 29(3) of the Act of 1927,

without which no notification could have been issued. There being no prima

facie evidence to suggest that the plot occupied by the petitioners has been

notified as protected forest in due course of law, it is held that the

applicants cannot be said to be necessary or proper parties to the present

writ petition which can be very well be dealt with in presence of the State

respondents.

6. It is pertinent to mention here that this issue was not raised by the

respondents in the earlier writ petition wherein the District Land & Land

Reforms Officer, Bankura was directed to prepare and correct the L.R. map

with regard to the disputed area over which the super speciality hospital has

been constructed. The authority was further directed to demarcate the area

vested with the State in view of the claim of the petitioners that a portion of

their land has been encroached upon by the State respondents while

constructing the hospital. In the present writ petition the petitioners have

prayed for compliance of the earlier order passed on July 31, 2019 and

corrected on November 13, 2019, by the concerned authority. The prayers of

the writ petition being in tune with the order of the earlier writ petition,

there is no change of circumstance which warrants addition of the

applicants as party-respondents in the present matter.

7. In view of the above, CAN 1 of 2022 is dismissed.

8. There shall however be no order as to costs.

9. Urgent certified website copies of this judgment, if applied for, be supplied

to the parties expeditiously on compliance with the usual formalities.

(Suvra Ghosh, J)

Later :

Re : CAN No. 1 of 2022

Learned counsel appearing on behalf of the State-respondents prays

for stay of operation of this judgment. Such prayer is considered and

rejected.

Re : WPA No. 14241 of 2021

Let this matter appear under the heading "Motion" on August 05,

2022.

(Suvra Ghosh, J)