Niwaran Marandi vs The State Of Jharkhand
2021 Latest Caselaw 3243 Jhar

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            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        W.P.(C) No.3648 of 2019
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1. Niwaran Marandi

2. Jaldhar Manjhi

3. Chitranjan Manjhi

4. Budheshwar Manjhi

5. Bhola Nath Manjhi ... ... Petitioners.

Versus

1. The State of Jharkhand

2. The Deputy Commissioner, Bokaro

3. The Land Reforms Deputy Collector, Bokaro

4. The Circle Officer, Chas, Bokaro

5. B.P.C.L through its Chairman, Bharat Bhavan, 4 & 6 Currimbhoy Road, Ballard Estate, Shivaji Nagar, Mumbai, (Maharashtra).

6. The Area Manager-cum-Side Incharge, B.P.C.L, Bokaro

... ... Respondents.

With Cont. Case (Civil) No.277 of 2020

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1. Niwaran Marandi

2. Jaldhar Manjhi

3. Chitranjan Manjhi

4. Budheshwar Manjhi

5. Bhola Nath Manjhi ... ... Petitioners.

Versus

1. The State of Jharkhand

2. Mukesh Kumar, Deputy Commissioner, Bokaro.

3. James Surin, Land Reforms Deputy Collector, Bokaro.

4. Diwakar Chandra Dwivedi, Circle Officer, Chas, Bokaro.

5. Sri Raj kumar Duraiswamy, Chairman, Bharat Petroleum Corporation Limited, Bharat Bhavan, 4 & 6 Currimbhoy Road, Ballard Estate, Mumbai (Maharashtra).

6. Shashwat Chakraborty, Area Manager-cum-Site In-charge, Bharat Petroleum Corporation Limited, Radha Nagar Pol Depot, Radha Nagar, District Bokaro (Jharkhand).

                                            ...       ...     Opposite Parties
          CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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           For the Petitioners        : Mr. Amar Kumar Sinha, Advocate

For the Respondent-State : Mrs. Neelam Tiwari, Sr. SC-II For Respondent Nos. 5 & 6: Mr. Mrinal Kanti Roy, Advocate.

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           CAV on 05.07.2021                   Pronounced on 03.09.2021
Rajesh Shankar, J.:
           Cont. Case (Civil) No.277 of 2020:

The judgment is being pronounced today through virtual mode. The present contempt case has been filed for initiating contempt proceeding against the opposite parties alleging wilful

disobedience of the interim order dated 2nd March, 2020 passed by this Court in W.P.(C) No.3648 of 2019.

Learned counsel for the petitioners submits that the Bharat Petroleum Corporation Limited has started construction work forcefully and illegally over the portion of the land in question.

A show cause affidavit has been filed on behalf of the opposite party nos.1 to 4, annexing a copy of letter no.1032 dated 10 th June, 2020, whereby the Circle Officer, Chas informed Bharat Petroleum Corporation Limited, Kolkata to maintain status quo over the land in question. In response to the said letter dated 10 th June, 2020, Bharat Petroleum Corporation Limited also informed the opposite party no.2 that they took immediate action and maintained status quo over the land in question.

A show cause affidavit has also been filed on behalf of the opposite party nos.5 and 6 stating therein that the order of this Court has not been violated and the construction is not being made over the land in question i.e. 10 acres of land being claimed by the petitioners, rather the same is being made on remaining portion of the acquired land.

Having heard learned counsel for the parties and on perusal of the show cause affidavits filed on behalf of the opposite parties, I see no reason to further proceed in the matter. The contempt proceeding as against the opposite parties is hereby dropped.

The present contempt case is, accordingly, disposed of.

W.P.(C) No.3648 of 2019:

1. Initially, the present writ petition was filed for calling upon the state respondents to show cause as to how and under what authority they were adamant to dispossess the petitioners from their ancestral raiyati land and were threatening to demolish the houses and other substantial structures erected over the land, appertaining to plot no.303, Khata no.136 and plot nos.220 and 230, Khata No. 154, measuring an area of 10 acres, situated at village Chas, P.S. Chas, District Bokaro (hereinafter to be referred as 'the said land') without following the due process of acquisition as also without following the mandatory provisions contained in the Bihar Land Reforms Act, 1950 with further to quash the orders dated 08.11.2016 passed by the Circle

Officer, Chas-respondent no.4 in Record Case No.5625 to 5629 of 2016-17, whereby it was prima facie observed that the jamabandi of the said land was doubtful and the petitioners were called upon to produce original documents as well as rent receipts and to submit their show cause reply as to why recommendation be not made under section 4(h) of the Bihar land Reform Act, 1950 (hereinafter to be referred as 'the Act, 1950') for cancellation of their jamabandi. The petitioners also prayed for issuance of direction upon the respondents, restraining them from dispossessing the petitioners from their aforesaid raiyati land.

2. During the pendency of the writ petition, the Additional Collector, Bokaro and the Deputy Commissioner, Bokaro-respondent no.2 passed the orders all dated 29.06.2020 under section 4(h) of the Act, 1950, which was subsequently confirmed by the State Government, and as such the petitioners by filing an interlocutory application being I.A. No.2915 of 2021 have further prayed for quashing the orders dated 29.06.2020 passed in cases i.e. Misc. 4(h) Case No. 33 of 2020-21, Misc. 4(h) Case No. 101 of 2020-21, Misc. 4(h) Case No. 110 of 2020- 21, Misc. 4(h) Case No. 111 of 2020-21 and Misc. 4(h) Case No. 115 of 2020-21 by both the Additional Collector, Bokaro and the respondent no.2, whereby Jamabandi of the petitioners over the said land have been cancelled. In the said interlocutory application, further prayer has been made for quashing the order dated 22.03.2021 passed by the Joint Secretary, Department of Revenue, Registration and Land Reforms, Govt. of Jharkhand, whereby the cancellation of jamabandi has been confirmed contrary to the provisions of section 4(h) of the Bihar Land Reforms Act.

3. Aggrieved with the interim order dated 02.03.2020 passed by this Court in I.A. No.1018 of 2020, directing the parties to maintain status quo till further order, Bharat Petroleum Corporation Limited (BPCL)- respondent no.5 preferred intra court appeal being L.P.A No.91 of 2021, which was disposed of by the learned Division Bench vide order dated 11.06.2021, requesting this court to hear and decide the writ petition expeditiously.

4. The factual matrix of the case, as appears from the record, is that the said land stands recorded in the name of the then landlord as a Gairmazarua Khas land. The landlord had settled the said land with

one Nihar Bala Choudhary (vendor of the petitioners/their ancestor) by virtue of customary Hukumnama on 27th Falgun of Bangla year 1352 coupled with Malguzari receipts followed by delivery of possession. After vesting of the estate under the Act, 1950, the demand in the name of the said settlee was opened in the revenue records. Thereafter, the said settlee became raiyat of the State and he transferred part of the land to different persons. Out of the said land, the petitioners/their predecessors in interest purchased 2 acres each, by virtue of registered sale deeds dated 22.04.1991 and thereafter paid rent to the State and to that effect the rent receipts were also issued in their names. All of a sudden, the petitioners were served the notices issued by the respondent no.4 under the provisions of section 4(h) of the Act, 1950. Accordingly, the petitioners appeared before the respondent no.4 and submitted relevant documents in order to prove their right, title, interest and possession over their lands. They also produced rent receipts with respect to their land issued by the State acknowledging them as raiyats. Thereafter, the petitioners approached the respondent no.4 several times, but he did not pay any heed to their grievances, rather vide orders dated 08.11.2016 initiated proceeding under section 4(h) of the Act, 1950, prima facie, observing that the jamabandi of the said land was doubtful. Finally, during the pendency of the writ petition, the impugned orders all dated 29.06.2020 were issued by the Additional Collector, Bokaro and the respondent no.2.

5. The learned counsel for the petitioners submits that neither the petitioners have been given any opportunity of hearing nor the proceeding under section 4(h) of the Act, 1950 has been initiated in accordance with law. The said land has been allotted by the State Government to BPCL for the purpose of construction of a depot and as such just to dispossess the petitioners from the said land, without following the acquisition process and paying compensation for the same, the respondent authorities arbitrarily and with mala fide intention started proceeding under section 4(h) of the Act, 1950 and passed the impugned orders all dated 29.06.2020 cancelling the jamabandi of the said land during the pendency of the present writ petition. Such action of the respondent authorities is apparently illegal and arbitrary with a mala fide intention to grab the raiyati land of the

petitioners for the BPCL. It is further submitted that even if the jamabandi of the same was opened in the name of the petitioners/their predecessors in interest in the year 1995-96, then also the respondent authorities had no jurisdiction to initiate proceeding under the Act, 1950 and to dispossess them, as they are the occupancy raiyats of the said village. The respondent authorities have no power and jurisdiction to allot the raiyati lands of the petitioners to BPCL without following the acquisition process with respect to the said land and making payment of due compensation. The transfer of the said land to BPCL is also in contravention of the Act, 1950 as well as the Chotanagpur Tenancy Act, 1908 (hereinafter to be referred as 'the Act, 1908'). It is a settled mandate of law that the land belonging to occupancy raiyats, who are the members of SC/ST community, cannot be transferred contrary to the provisions contained in sections 46 and 49 of the Act, 1908. The respondent-State has transferred the said land to BPCL suppressing the fact that the petitioners have been in possession of the same, as would be evident from perusal of the certificate issued by Radhanagar Panchayat as well as the letter issued for recognition of forest rights. It is further submitted that memo No.419 dated 31.05.2017 issued from the office of the District Collector, Bokaro regarding certification of 65 acres of forest land proposed to be diverted for non-forest purposes in favour of BPCL for construction of its project contains specific clause that the said proposal does not involve recognized rights of primitive tribal groups and pre-agricultural communities. The respondent no.2 vide order as contained in memo no.1834 dated 11.07.2019 granted lease in favour of BPCL for a period of 30 years over an area of 69.65 acres of land. On bare perusal of the condition mentioned in Clause 2 of the said memo, it would be evident that the respondent no.4 was cast upon mandatory duty to verify the area mentioned in the concerned Khatas and plots of the land proposed to be transferred with the Khatiyan and other revenue documents and then only the process of transfer of the land was to be undertaken. However, only paper transaction was done by the authorities during the pendency of the cases under the Act, 1950 in utter violation of the said mandatory condition which itself manifests mala fide on their part. The contention of the respondent-BPCL that the depot is being constructed to cater the needs of the people of

Jharkhand is also wrong. The said depot would not even fulfil the recommendations of M.B. Lal Committee, since it is being constructed in a densely populated area. The respondent-BPCL in collusion and in connivance with some of the state respondents is adamant to construct the said depot at the cost of precious life and property of the villagers. It is also submitted that the approvals of the State Government as well as the Ministry of Environment, Forest & Climate Change, Government of India have been obtained on suppressing the real facts. Even the provisions of the Act, 1950 and the Act, 1908 have been applied with mala fide motive. The BPCL was fully aware during the verification of the plots and the revenue records that the raiyats had been carrying on agricultural activities over the said land, however, ignoring the same, they proceeded with the construction. The State authorities should have redressed the legitimate grievance of the raiyats by making payment of suitable compensation to them for illegally transferring their land to BPCL. Even a circular as contained in letter no.423 dated 12.02.2015 has been issued by the Secretary, Revenue and Land Reforms Department, Government of Jharkhand, whereby the right of those persons has been acknowledged, who have been in possession of Gairmazarua Khas/ Government land for more than 30 years and Jamabandi has been running in their names in Register-II for more than 30 years. As such, the writ petitioners at least deserve to be paid due compensation in accordance with law.

6. The learned counsel appearing on behalf of the respondent-State submits that the said land is recorded as Gairmazarua "Kism- Jungle and Parti" in last cadastral survey. The impugned orders all dated 08.11.2016 have been passed by the respondent no.4, issuing show cause notices to the concerned raiyats as to why the recommendations be not made to cancel the jamabandies under 4(h) of the Act, 1950. Thereafter, the respondent no.2 and the Additional Collector, Bokaro passed the impugned orders all dated 29.06.2020, cancelling the petitioners' jamabandies under Section 4(h) of the Act, 1950 after following due process of law and as such the present writ petition is not maintainable. The petitioners have alternative efficacious remedy to file appeal against the impugned orders before the prescribed authority and on this score alone the writ petition is liable to be dismissed. It is further submitted that the said land has been allotted

to BPCL for the purpose of construction of a depot within the purview of law after having found through proper enquiry that the entire documents furnished by the petitioners relating to the said land were fake and the Jamabandi were created on the basis of the said fake documents. Hence, the respondent authorities initiated proceeding under section 4(h) of the Act, 1950 against the petitioners and allotted the land in question to BPCL within the four corners of law.

7. The learned counsel for the respondent- BPCL submits that the BPCL had made an application before the respondent no.2 for allotment of land in order to open a depot at Bokaro, whereupon the State Government allotted 69.65 acres of Gairmazarua land in its favour with approval of the Ministry of Environment, Forest and Climate Change, Government of India. Thereafter, the respondent no.2 issued an order, as contained in memo no.1834 dated 11.07.2019, granting lease of 69.65 acres of land for the period of 30 years in favour of BPCL with certain terms and conditions. It is further submitted that the petitioners have not annexed the copy of Hukumnama in support of their contention regarding settlement of said land in favour of their vendors/their ancestors. The vendors of the said land had no right to transfer the same and hence any sale deed executed by an incompetent person shall not amount to transfer of any valid as well as legal right and title. Rent receipts do not prove right, title and interest of any person over a land. It is also submitted that the BPCL started construction only pursuant to environmental clearance granted from the Ministry of Environment, Forest and Climate Change, Government of India. The BPCL also obtained forest land diversion approval from the said Ministry of the Govt. of India as well as all other required permissions from appropriate authorities. The construction of the depot at Mouja Radhanagar is aimed at benefitting the residents of the locality and the whole State of Jharkhand. The depot on being commissioned, shall provide livelihood to about 200 family members of Tank Lorry Crew and several other vendors. The depot so constructed will have capacity to provide direct and indirect employment to around 500 people most of whom will be from the locality in and around the area where depot is coming up. This Court vide order dated 2nd March, 2020 has directed the parties to maintain status quo with respect to the land measuring an area of 10 acres. The

said land comprises of major part of the project site, such as main gate, buildings and sheds/gantry/fire water tank/ underground tanks. In absence of commissioning of the depot at Radhanagar, the BPCL is constraint to continue its functioning from the depots at Ranchi, Dhanbad and Tatanagar. Once the depot at Radhanagar is commissioned, the other depots at Ranchi and Dhanbad will be closed down in phased manner which shall reduce the chance of any accident occurring in the densely populated area and will have numerous other benefits such as reduction of pollution, reduced carbon footprint, efficiency in operation, energy security for the State of Jharkhand etc. It is also submitted that about 70% of the construction work has been completed by the respondent-BPCL in the rest of the leased area.

8. Heard the learned counsel for the parties and perused the materials available on record.

9. Before coming to the merit of the case, it would be appropriate to discuss the manner in which the proceeding under Section 4(h) of the Act, 1950 was conducted, which resulted in cancellation of the jamabandi of the land of the petitioners/their predecessors in interest. It appears that the respondent no.4 opened Record Case Nos.5625, 5626, 5627, 5628 and 5629 of 2016-17 under section 4(h) of the Act, 1950 and issued notices to the petitioners vide orders dated 08.11.2016 alleging that during inspection the jamabandi of the petitioners/their ancestors over the said land were found doubtful and as such they were directed to appear before him and submit relevant documents relating to settlement of the said land in their favour. Subsequently, vide order dated 20.12.2018, the respondent no.4 observed that the petitioners did not submit any document for the period prior to abolition of Zamindari viz. Return-1, Hukumnama, M Form, Jamindari receipts. Having observed so, the respondent no.4 recommended for cancellation of Jamabandi and sent the record to the respondent no.3. The respondent no.3 on receipt of the record, made queries on five points from the respondent no.4 upon which the respondent no.4 obtained enquiry report from the concerned Circle Inspector and again recommended for cancellation of Jamabandi and sent the record to the respondent no.3. Thereafter, the respondent no.3 and the Sub Divisional Officer, Chas jointly passed the order dated 19.03.2020 and recommended for cancellation of jamabandi of the

land running in the name of the petitioners/their predecessors in interest and sent the record to the Additional Collector, Bokaro, who on perusal of the documents produced by the petitioners passed the impugned orders all dated 29.06.2020, observing that they did not produce any document except the sale deeds and the rent receipts. The said orders were also signed by the respondent no.2. It was observed inter alia that the jamabandi of the said land was not created prior to 01.01.1946, the rent receipts were not issued on yearly basis by the Jamindar prior to 01.01.1946, moreover, Jamindari receipts from 01.01.1946 to 1955-56 and, thereafter, the government revenue receipts were also not issued as well as in the field Bujharat register made in the year 1954-55 the possession details were not entered either in the name of the jamabandi raiyat or his ancestors. It was also observed that in the recorded jamabandi, the signature of the competent authority is missing. Moreover, the land in question was transferred to BPCL after approval of the State Cabinet taking requisite fee over which approximately 50% work was completed. Thereafter the records were sent to the Commissioner, North Chotanagpur Division, Hazaribagh, who also recommended for cancellation of the petitioners' jamabandi and sent the matter to the State Government. Thereafter, the State Government also approved the orders of cancellation of jamabandi of the petitioners over the said land.

10. The petitioners, in support of their claims, have placed on record several documents such as rent receipts issued by the Jamindar after the settlement, rent receipts issued by the government in favour of the settlee for the period from 1955 to 1990. They have also filed correction slips issued in the names of the petitioners/ their predecessors in interest, showing mutation of the said land, after purchase of the same as well as rent receipts issued by the government in their favour.

11. The learned counsel for the petitioners has put much emphasis on the judgment rendered by learned Division Bench of this Court in the case of State of Jharkhand & Others Vs. Izhar Hussain (L.P.A No.786 of 2018), whereby the judgment of this Court passed in W.P.(C) No.4978 of 2016 (Izhar Hussain Vs. The State of Jharkhand) has been affirmed. I perused the said judgment, the relevant paragraphs of which are quoted hereinbelow:-

"15. This Court, on the basis of aforesaid rival submissions, has found the legal issues about the applicability of the provision of Section 4(h), as under:

"Whether in the facts of the case the provision as contained under Section 4(h) of the Bihar Land Reforms Act is made to be applicable and as to whether under the provision of Section 4(h) of the Bihar Land Reforms Act Jamabandi granted in favour of any raiyats can be cancelled?"

16. This Court, in order to adjudicate this legal issue deem it fit and proper to go across the preamble of the Bihar Land Reforms Act, 1950, which says that for the transference to the State of the interests of proprietors and tenure-holders in land and of the mortgagees and lessees of such interests including interests in trees, forests, fisheries, jalkars, ferries, hats, bazars, mines and minerals and to provide for the constitution of a Land Commission for the State of Bihar with powers to advise the State Government on the agrarian policy to be pursued by the State Government consequent upon such transference and for other matters connected therewith.

The intention behind the proviso to provide for the transference to the State of the interests of proprietors and tenure holders in land and of mortgagees and lessees of such interests as enshrined in the directive principles of our Constitution of India under Articles 39 (B) and 39(C).

Section 4 of the Act, 1950 provides consequences of the vesting of an estate or tenure in the State. Subsection 4(b) thereof says that all rents, cesses and royalties accruing in respect of lands comprised in such estate or tenure on or after the date of vesting shall be payable to the State and not to the outgoing proprietor or tenure-holder and any payment made in contravention of this clause shall not be binding on the State Government. Sub-section 4 (h) provides power upon the Collector to make inquiries in respect of any transfer including the settlement or lease of any land comprised in such estate or tenure or the transfer of any kind of interest in any building used primarily as office or cutchery for the collection of rent of such estate or tenure or part thereof, and if he is satisfied that such transfer was made at any time after the 1st day of January, 1946, with the object of defeating any provisions of this Act or causing loss to the State or obtaining higher compensation thereunder the Collector may, after giving reasonable notice to the parties concerned to appear and be heard annul such transfer, dispossess the person claiming under it and take possession of such property on such terms as may appear to the Collector to be fair and equitable; provided that an appeal against an order of the Collector under this clause if preferred within sixty days of such order, shall lie to the prescribed authority not below the rank of the Collector of a district who shall dispose of the same according to the prescribed procedure and further provided that no order annulling a transfer shall take effect nor shall possession be taken in pursuance of it unless such an order has been confirmed by the State Government.

It is, thus, evident that Section 4(h) confers power upon the Collector to effect any transfer if such transfer is found to be for the purpose of frustrating the intent and purport of the Act in respect of transfer made any time after 1st January, 1946.

The issue pertaining to applicability of provision of Section 4

(h) fell for consideration before Patna High Court in the case of Laxman Sahni Vs. State of Bihar & Ors. reported in 1990 (1) PLJR 170, wherein it has been laid down to the effect that

recourse for cancellation of Jamabandi under the Sections can be taken only where any estate or tenure or any part thereof vests in the State. Section 4(h) clothes the Collector with jurisdiction to make enquiries in respect of transfers made any time after 1st January, 1946.

Further, in the case of Sri Rama Prasad Singh & Ors Vs. The State of Bihar & Ors reported in 1990 (1) PLJR 165, it has been held that annulment of settlement made in 1945 on the assumption that it was made within the family to deprive the valuable land is mere presumption. On a plain reading of the provision it is obvious that the Collector while exercising power to make inquiries in respect of any transfer must be satisfied that such transfer was made at any time after 1st January, 1946. No finding recorded that the transfer was made after 1st January, 1946. The Land Reforms Deputy Collector being an adjudicating body could not recommend for such annulment and had to arrive at his own conclusions in terms of Section 4(h) of the Act.

17. It further requires to refer herein that for vesting of the estate or tenure in a notification to that effect is required to be issued under Section 4 to the effect that the rent vested in the State of Bihar free from all encumbrances from the date of notification by operation of Section 4 such estate or tenure including the interests of the proprietor in such estate or tenure other than the interests of raiyats or underraiyats shall, with effect from the date of vesting, vest absolutely in the State free from all incumbrances and such proprietor or tenure-holder shall cease to have any interest in such estate or other than the interests expressly saved by or under the provisions of this Act.

Reference in this regard be made to the judgment rendered in the case of Brighu Nath Sahay Singh & Ors Vs. Md. Khalilur Rahman & Ors reported in (1996) 1 PLJR (SC) 65.

Herein, as would appear from the materials available on record,that the State Government has not produced any document pertaining to notification issued under Section 4 of the Bihar Land Reforms Act. Further the reference of notification issued by the forest department as contained in notification no. C/F/17014/58-1429R dated 24.05.1958 has been mentioned but the admitted fact after going through the Section 4 of the Act, 1950 is that there must be a notification under the provision of Section 4 of the Act, 1950 and if any notification has been issued by the forest department that cannot be said to be issued under the purported exercise of power conferred under Section 4 of the Act, 1950."

12. It has also been held in the aforesaid judgment that Jamabandi can be created under the provisions of Bihar Tenants Holdings (Maintenance of Records) Act, 1973 wherein no provision has been made, conferring power to any authority of the State to cancel the Jamabandi. In absence of any such power conferred by Statute upon any of the revenue authority, the Jamabandi cannot be cancelled. If any decision is taken by the revenue authority in absence of any such provision in the statute, the same will be nullity in the eye of law being without jurisdiction. Moreover, long running Jamabandi cannot be cancelled,

except by filing a suit in the competent Court of Civil Jurisdiction, as has been held by Patna High Court in the case of Ramayan Yadav & Ors Vs. State of Bihar & Ors., reported in (2013) 3 PLJR 533.

13. In the present case, the proceeding under section 4(h) of the Act, 1950 was initiated to cancel the jamabandi of the petitioners/their predecessors in interest over the said land which was not the scope of the said section. None of the authorities, who had the occasion to deal with the matter, has observed a single line on the issue as to whether the transfer of the said land was effected after 01.01.1946 with an object of defeating any provisions of Act, 1950 or causing loss to the State or for obtaining higher compensation. Moreover, the manner in which the respondent authorities initiated the proceeding under Section 4(h) of the Act, 1950 which ultimately resulted in passing of the impugned orders of cancellation of jamabandies of the respective land manifests that the same was mere an eyewash just to somehow legalize their action with regard to transfer of the said land to BPCL. The obligation on the part of the State authorities to act fairly is to ensure the rule of law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the administrative/quasi-judicial authorities are bound to observe. It is a well-known principle that the justice must not only be done, rather it must also be seen to be done.

14. In the case of Asha Sharma Vs. Chandigarh Administration & Others, reported in (2011) 10 SCC 86, the Hon'ble Supreme Court has held as under:-

"14. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even if the determinative factors of the situations in question were identical. This uncertainty must be avoided."

15. It appears to this court that even during the pendency of the proceeding under section 4(h) of the Act, 1950, the said land were transferred to BPCL. After filing of the present writ petition, this court vide order dated 02.03.2020 observed that the land in question was transferred by the respondent no.2 in favour of the respondent nos. 5 and 6 without cancelling the Jamabandi running in favour of the petitioners and as such the balance of convenience lied in favour of the petitioners. Only thereafter, the respondent no.2 and the Additional Collector, Bokaro passed the impugned orders, recording inter alia that the land had already been transferred to BPCL and 50% work had been completed. Thus the said authorities were apparently influenced by the said transfer of the land. It has been recorded in the impugned orders dated 29.06.2020 that the jamabandi was not opened before 01.01.1946 and the Jamindari receipt as well as government receipts were not issued from 01.01.1946 to 1955-56. However, on perusal of the contents of the copies of the sale deeds filed by the petitioners, it appears that the said land was settled in favour of the settlee in Falgun month of Bangala year 1352 (February- March of 1946 of English Calendar). Thus, there was no question of opening the jamabandi before 01.01.1946 or payment of rent to the jamindar before that period. The petitioners have also filed copies of jamindari receipts issued by the jamindar after settlement.

16. The respondent no.2 and the Additional Collector, Bokaro while passing the impugned orders have also relied upon the judgment of the Hon'ble Supreme Court rendered in the Case of T.N. Godavarman Thirumulkpad Vs. Union of India & others, reported in (1997) 2 SCC 267.

17. In the case of Izhar Hussain (supra.), the learned Division Bench of this Court, while going through the provision of Section 2 of the Forest Conservation Act and the judgment rendered in the case of T.N. Godavarman Thirumulkpad (supra.), has held that the same will not be applied so as to cancel the long running jamabandi of a person. Para 23 and 24 of the said judgment is reproduced hereinbelow:-

"23. Further, we have found that the learned Single Judge has discussed the provisions of Section 2 of the Forest Conservation Act, 1980. For ready reference, Section 2 of the Act, 1980 is reproduced herein below:

"S.2 : Restriction on the de-reservation of forests or use of forest land for non-forest purpose - Notwithstanding anything

contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing,'

(i) that any reserved forest (within the meaning of the expression "reserved forest" in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;

(ii) that any forest land or any portion thereof may be used for any non-forest purpose;

(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;

(iv) that any forest land or any portion thereof - may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for re afforestation.

Explanation: For the purposes of this section ''nonforest purpose" means the breaking up or clearing of any forest land or portion thereof for'

(a) the cultivation of tea, coffee, spices, rubber, palms, oilbearing plants, horticulture crops or medicinal plants;

(b) any purpose other than re-afforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes."

Reference, in this regard be made to the judgment rendered by Hon'ble Apex Court in the case of T.N. Godavarman Thirumulkpad vs. Union of India &Ors., reported in (1997) 2 SCC 267, in particular paragraph 4, which is quoted hereunder as:

"4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word "forest'' must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term "forest land", occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this court in AmbicaQuarrry Works and Ors. v. State of Gujarat and Ors., Rural Litigation and Entitlement Kendra v. State of U.P., and recently in the order in Supreme Court Monitoring Committee v. Mussorie Dehradun Development Authority and Ors.. The earlier decision of this court in State of Bihar v. Banshi Ram

Modi and Ors., has, therefore, to be understood in the light of these subsequent decision. We consider it necessary to reiterate this settled position emerging from the decisions of this court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this court. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay."

24. The learned Single Judge, on the basis of provisions as contained in Section 2 of the Forest Conservation Act, 1980 and the judgment rendered in the case of T.N. Godavarman Thirumulkpad (supra), has come to the conclusive finding that the Section 2 of the Act, 1980 is applicable to the government as well as the private forest land, so as to check/restrict deforestation which ultimately results in ecological imbalance. The term 'Forest' will not only mean forest as understood in the dictionary sense but will also include the land recorded as forest in the government record irrespective of its ownership. Therefore, the provision of section 2 of the Act, 1980 or the judgment rendered in the case of T.N. Godavarman Thirumulkpad (supra) cannot be applied by the respondent authorities for cancellation of Jamabandi much less the long running one."

18. Thus, this Court is of the view that the respondent no.2 and the Additional Collector, Bokaro have misconstrued the judgment rendered by the Hon'ble Supreme Court in the case of T.N. Godavarman Thirumulkpad (supra.). It has nowhere been held in the said judgment that if any land, which is within the ownership of any private person, is recorded as Jungle-Jhari, the same will vest to the Government, rather the Hon'ble Supreme Court has held that Section 2 of the Act, 1980 will be applicable to all the forest land irrespective of its ownership which means that the nature of any forest land even in the ownership of any private person shall not be permitted to be changed except by the procedure provided under law.

19. It is true that the prescribed authority has the power to initiate a proceeding under section 4(h) of the Act, 1950 to verify if any transfer was made after 01.01.1946 just to defeat the provisions of the said Act or for causing loss to the State or for obtaining higher compensation, however, not at all transfers made after 01.01.1946 are to be cancelled unless the ingredients under section 4(h) are fulfilled and the authority has given ample opportunity of hearing to the affected persons and has recorded its reasons for arriving at such a conclusion. This Court is of the view that in the present case, the respondent authorities by wrongly construing the provisions of Section

4(h) of the Act, 1950 initiated the proceeding under the said provision to somehow cancel the jambandies of the petitioners over the said land.

20. In view of the aforesaid discussion, this Court finds that the State respondents before transferring the said land in favour of BPCL and subsequently cancelling the petitioner's Jamabandi over the same completely ignored the long possession of the petitioners/their predecessors in interest existing upon the said land without even bothering to verify the right of the petitioners before finalizing the lease. The entire proceeding in purported exercise of the power under section 4(h) of the Act, 1950 so as to cancel the jamabandi of the said land, which led to passing the impugned orders all dated 29.06.2020 in Misc. 4(h) Case No. 33 of 2020-21, Misc. 4(h) Case No. 101 of 2020- 21, Misc. 4(h) Case No. 110 of 2020-21, Misc. 4(h) Case No. 111 of 2020-21 and Misc. 4(h) Case no.115 of 2020-21 by both the Additional Collector, Bokaro and the respondent no.2 having been initiated in colourable exercise of power is quashed. The order dated 22.03.2021 passed by the Joint Secretary, Department of Revenue, Registration and Land Reforms, Govt. of Jharkhand, confirming the cancellation of the petitioners' jamabandies is also quashed.

21. Now the question before this court is as to what appropriate order can be passed under the peculiar facts and circumstances of this case to subserve the ends of justice.

22. This court finds from the pleading as well as averments of the BPCL that after transfer of the land, it has completed substantial part of the concerned project and the said land is inseparable part of the project. The main entry to the entire allotted land is through the disputed land and the control room, administrative buildings, sheds, gantry, gantry driveway, fire water tank, pump house, emergency gate as well as the main gate of the depot are also proposed to be constructed over the same and due to the pending litigation the entire project is said to be adversely affected. It has been contended by the BPCL that in absence of the aforesaid structures, the commissioning of the depot is not possible and that the said project is beneficial to the residents of the State of Jharkhand in various ways.

23. The learned counsel for the petitioners has also brought on record letter no.334 dated 14.05.2009 issued by the Revenue and Land

Reforms Department, Government of Jharkhand, whereby all the Deputy Commissioners have been informed that if any land is being requisitioned for any project of public undertaking under Central Government, the related area is to be inspected by a committee, consisting of four members, and if during special survey and local inspection, it is found that a raiyat is in occupation of Gairmazarua Khas/Government land for more than 30 years before the date of requisition and the jamabandi is also running in his name for more than 30 years, appropriate action will be taken to pay him compensation equivalent to a general raiyat. Again, vide letter no.423 dated 12.02.2015, the Revenue and Land Reforms Department, Government of Jharkhand clarified the said aspects to all the Commissioners/Deputy Commissioners that letter no.334 dated 14.05.2009 would be made applicable to only those persons who are found in cultivating possession of Gairmazarua Khas/Government land for more than 30 years as also the jamabandi is running in their names in Register-II for more than 30 years and instructions given in the said letter will not be applicable to the other matters.

24. The petitioners/their predecessors in interest have purchased the said land on 22.04.1991 and even prior to that the rent receipts were issued to the vendor of the petitioners/their ancestors and thus said land were either in occupation of the petitioners/their predecessors in interest or the settlee since long and jamabandies were also opened in their names. Even if the argument of the learned counsel for the respondents is accepted for a while that the jamabandies were opened in the names of the petitioners/their predecessors in interest without following due procedure of law, then also the letter no.334 dated 14.05.2009 and letter no.423 dated 12.02.2015 will be applicable in the case of the petitioners.

25. Though this court has found that the respondent authorities have wrongly exercised the power under section 4(h) of the Act, 1950 while passing the impugned orders in respect of the petitioners, this Court is of the view that relegating the respondent authorities to take appropriate recourse in the competent court of civil jurisdiction will not serve the ends of justice, as the project of BPCL is in advance stage and the disputed land is integral part of the same.

26. Thus, to balance the interest of the petitioners vis-a-vis the BPCL as well as to subserve the ends of justice, this Court directs the State Government to determine appropriate compensation of the said land forthwith and deliver possession of the same to BPCL on payment of proportionate compensation to the petitioners.

27. It is, however, made clear that this court has not commented on the title of the petitioners over the said land, rather looking to the peculiar facts and circumstances of the present case, the aforesaid arrangement has been made which would not in any way be taken as a precedence by any other person claiming to be similarly situated.

28. The writ petition is, accordingly, disposed of with the aforesaid observations and directions.

(Rajesh Shankar, J.)

Sanjay/AFR