Parmeshwar Mahatha & Ors vs The State Of Jharkhand & Ors
2022 Latest Caselaw 346 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            [Civil Writ Jurisdiction]
                            W.P.(C) No. 5000 of 2016
      Parmeshwar Mahatha & Ors.                              .... .. ... Petitioners

                               Versus
      The State of Jharkhand & Ors.                          .. ... ... Respondents
                                ...........

      CORAM          :HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                     (Through :- Video Conferencing)
                           .........
       For the Petitioners                : Mr. Bibhash Sinha, Advocate
       For the respondent-State           : Mr. Ashok Kumar Yadav, G.A.-I
       For the respondent-NHAI            : Ms. Sweety Topno, Advocate
                                     ......
12/ 09.02.2022.
               Heard, learned counsel for the parties.

Learned counsel for the petitioners, Mr. Bibhash Sinha has submitted that petitioners have preferred the writ petition for direction upon the respondent no.2 (Land Acquisition Officer, Bokaro Steel City, Bokaro) to consider the representation dated 04.09.2015 served by the petitioners regarding objection in connection with notification dated 07.04.2015 for the acquisition of land pertaining to plot No.985 under Khata No.06 within Mouza Bandgora No.35, P.S. Pindrajora, District- Bokaro. The said notification has been published u/s 3(ii) under the National Highways Act, 1956 for the acquisition of land in Dainik Jagran, Hindi daily newspaper dated 13.04.2015.

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that for the purpose of construction of NH 23, the Land Acquisition Officer, Bokaro has published Notification under Section 3A(1) of the National Highway Authority Act, 1956 within the district of Bokaro for 0.0 Kilometer to 48.485 Kilometers (ITI More, Chas to Charangi Section) for the expansion of the road/ construction of four lanes.

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that the gazette notification has been made on 07.04.2015, wrongly showing plot No.985 under khata No.6 as the Government land. The said notification under Section 3A(1) of the National Highways Act, 1956 is annexed as Annexure-1 of the instant writ petition.

Learned counsel for the petitioners has thus submitted that this only shows the intention when it is not going to affect the right of the person unless and until the Notification under Section 3D of National Highways Act i.e. declaration of acquisition, is made by the Central Government.

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that by subsequent notification, which has been brought on record as Annexure-2 to the writ petition published in the Dainik Jagran, Hindi daily newspaper, Dhanbad dated 25.07.2015, this land of Plot No.985 has not been acquired by the State or it was not declared to be a land to be acquired for expansion and widening of the roads, as such, petitioners could not file any objection under Section 3C of the National Highways Act, 1956.

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that the land belongs to the petitioners i.e. petitioner nos.1, 2 and 3 are sons of Late Shyampad Mahatha, who was son of Late Bhikhu Mahatha. The said Bhikhu Mahatha was the son of Late Banu Mahatha, son of Late Laphar Mahatha, who was the son of Late Pritam Mahatha, as per the genealogical table, which has been brought on record as Annexure-3 to the writ petition.

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that in the year, 1928, Done Mahatha, Banu Mahatha and Chamu Mahatha sons of Late Nafer Mahatha and Thakurdas Mahatha, Jhoru Mahatha, son of Late Sitaram Mahatha jointly filed a Title Suit vide No.360 of 1928 being the plaintiffs against Shashi Bhushan Mishra, Jogendranath Mishra, Abinash Chandra Mishra, Jyotindranath Mishra and Satish Chandra Mishra all sons of Late Dwarikanath Mishra, who were the principal defendant nos.1 to 5 respectively as well as Raja Sri Jyoti Prasad Singh Singhdeo as defendant no.7 for declaration of title and confirmation of possession of the land bearing plot no.985 and got the decree from the learned court of Munsif of Manbhum on 12.04.1930, which has already been brought on record as Annexure-4 to the writ petition. The said judgment and decree passed in Title Suit No.360 of 1928 has been assailed by the defendants, Shashi Bhushan Mishra and others by preferring an appeal vide Title Appeal No.185 of 1930 before the learned court of District Judge of Manbhum, but the same was dismissed with cost on 08.05.1931 that attains finality as the said order has never been assailed in first appeal or second appeal or before any appellate authority thereafter.

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that plot no.985 under khata no.06 is not a Government land, rather it is a raiyati land, which was purchased by the ancestors of the petitioners through sale deed no.15423 dated 21.12.1951 and the same has also been brought on record as Annexure-6 to the writ petition.

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that petitioner no.4, namely, Manju Rai, daughter of Gayisree Rai has purchased 1.30 acres of land in plot no.985, 1004 and 1014 from Krishnapada Mahatha and

others, the heirs of Chamu Mahatha through registered sale deed No.3764 dated 27.05.2008 and out of her purchased land and respondent no.2 (Land Acquisition Officer, Bokaro) acquired 40 decimals of land in plot no.985, though the said land was already mutated in record in the name of petitioner no.4 (Manju Rai) with respect to jamabandi no.14 and the petitioner no.4 was paying rent to the government, which has also been brought on record as annexure-11 series to the writ petition.

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that there was one Title Suit No.140 of 1954, filed by Radhanath Mahato and Others of Bandgora, Pargana Khaspol vs. State of Bihar, in which Bhikhu Mahatha the grandfather of the petitioner nos.1, 2 and 3 was also party. The said Title Suit was filed for declaration and the properties mentioned in Schedule 1 to 4 whereas the plot no.985 has been mentioned with other Plot in Schedule III. The said Title Suit No.140/1954 was decided on 24.07.1956 by the court of Munsif of Purulia, District- Manbhum in favour of the plaintiffs and judgment and decree was drawn in favour of the plaintiffs.

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that necessitated, as a notification under Section 29 of Indian Forest Act, 1921 has been issued by the Forest Department, thus the Title Suit No.140 of 1954 was filed with prayer for declaration that the properties mentioned in Schedules 1 to 4, details of which have been given in the plaint. Further the plaintiffs' right to control, manage and possess the said properties, still subsist and the same has not been constituted as a private protected forest land. The plaintiffs have also prayed for permanently injuncting the defendants from interfering with the plaintiff's possession over the trees standing over schedules 1 to 4.

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that place in Schedule of the property was in Schedule III, where the plot no.985 has been mentioned and further submitted that since no inquiry was conducted under Section 29(3) of the Forest Act, as such, learned Munsif has held at para 14 of the said judgment, which is at page no.88 of the brief which reads as follows:-

"In view of the discussions made above, I am inclined to hold that the present suit is not barred under Section 71 of the Bihar Private Forest Act nor is it a premature one. I accordingly decide all the aforesaid issues in favour of the plaintiffs and against the defendants."

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that the learned Munsif in the said judgment at para 14 also which is at page no.89 of the brief as held that:-

"It is hereby declared that the properties described in the schedules 1 to 4 of the plaint have not been constituted into a private protected forest as contemplated

under the Bihar Private Forest Act and the plaintiff's right to control, manage and possess the disputed property still subsists. It is further ordered that the defendant be injuncted from interfering with the possession of the plaintiffs over the trees standing over the lands of schedules 1 to 4 till such time the properties mentioned in scheduled 1 to 4 have been properly and legally constituted into the private protected forest, in accordance to the provisions of laid down under the Bihar Private Forest Act."

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that this notification has been filed by the State in its counter-affidavit dated 06.12.2016, sworn by Shyam Sunder Ram, S/o Shyam Sunder Ram (as his father's name is apparently written in handwriting also as Shyam Sunder Ram) wherein the notification as contained in No.C.F-17014/58-1429-R dated 24.05.1958, issued by Government of Bihar has been annexed as Annexure-A to the counter-affidavit, which reads as follows:-

"The nature and extent of the rights of Government and of private persons in or over the forest land and waste lands comprised in this notification have not yet been enquired into and recorded as laid down in sub-section (3) of section 29 of he said Act, but as the State Government thinks that such enquiry and record will occupy such length of time as in the meantime to endanger the rights of Government and as the enquiry and record of rights will hereafter be made this notification is issued subject to all existing rights of individuals or communities."(emphasis supplied)

This notification shows at serial no.15 Bandhgora plot no.985.

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that the Government should clarify that when any enquiry was made under Section 29(3) of the Indian Forest Act to declare this land to be a forest land.

Learned counsel for the petitioners has further submitted that the forest produce and degradation of the forest is only controlled by the State Government but the land on which these trees are standing cannot be claimed to be of government unless and until the State Government show before this Court that pursuant to this notification there was an enquiry under Section 29(3) of the Indian Forest Act.

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that it would be proper for this Court to consider the rejoinder to the counter- affidavit dated 18.07.2018, wherein the judgment of CWJC Case No.1232 of 1993 has been brought as Annexure-R/1. Further Civil Writ Case No.1232 of 1993, which was disposed of on 16.06.2003 with a direction to the State that, "if so chooses, may move before a civil court of competent jurisdiction for declaration, of right, title and possession/restoration of possession, if permissible. This case was with regard to B.P.L.E. proceeding vide B.P.L.E. Case No. 19/88-89 wgere Adarsh Sahkari Grih Nirman Samiti Ltd. through its General Secretary Shri Kameshwar Singh and Shri A.P. Singh, Chairman, Adarsh Sahkari Grih Nirman Samiti being the writ petitioners and this Plot No.985 has been referred at para 7 of the judgment sowing

the aforesaid notification vide No.c/f-17014/58/1429 (R) declared the area of 113.40 acres comprising of plot nos.15, 18, 1025, 2022, 985, 978, 1040 and 5 of Village Bandhgora, Thana Chas, Thana No.35, District- Dhanbad (now Bokaro) as protected forest." (emphasis supplied)

Learned counsel for the petitioners, Mr. Bibhash Sinha has further submitted that this fact has already been brought to the notice by the Additional Collector, Bokaro to the Deputy Commissioner, Bokaro vide Letter No.29/Revenue dated 07.01.2002 recommending the transfer in the name of person, who were in possession of the land. Paragraph in verbatim may be quoted hereunder:-

"ou foHkkx ds vf/klwpuk la[;k& [email protected]&1429 fnukad 24-05-1950 }kjk Hkkjrh; ou vf/kfu;e 1927 ds /kkjk 29(3) ds vUrxZr ekStk& ca/kxksM+k ds [ksljk la-& 5] 15] 18] 1025] 1022] 985] 978 rFkk 1040 dqy jdck& 113-40 ,dM+ jf{kr (protected forest) ?kksf"kr fd, tkus dh lwpuk nh xbZ gS rFkk futh O;fDr;ksa ds vf/kdkjksa dk tkWp cu O;oLFkk ifnkf/kdkjh }kjk dh xbZ gS ftlds rgr jS;rksa ds ouksit ds mij vf/kdkjksa dks fu/kkZfjr fd;k x;k gS rFkk [kkl fdLe ds ouksit dsk lqjf{kr ?kksf"kr djrs gq, muds mi;ksx ij fu"ks/k fd;k x;k gS fdUrq bl vf/klwpuk ls jS;rks dks Hkwfe ds lRokf/kdkj ls oafpr ugha fd;k tk ldrk gS] bls ou izeaMy inkf/kdkjh us Hkh Lohdkj fd;kA "

Learned counsel for the petitioners has further submitted that in the report of of Additional Collector, Bokaro, which is page no.95 of the brief, internal page 4 of the report, it has been stated that " of.kZr rF;ksa ,oa fofHkUu U;k;ky;ksa }kjk ikfjr vkns'k ds voyksdu ls Li"V gksrk gS fd fookfnr [ksljk la-&05 ,oa 15 jS;rh gS] ij blds vtZu laca/kh fof/kor dkjZokbZ ou foHkkx }kjk iw.kZ ugha dh xbZ ] izrhr gksrk gS vkSj u lacaf/kr jS;rksa dks eqvkotk gh fn;k x;k gSA fookfnr Hkwfe dk eSaus LFky fujh{k.k fd;kA Hkwfe ij orZeku vf/klwfpr (lqjf{kr) ouksit vkfn ugha gSA Learned counsel for the petitioners has thus submitted that this fact was within the knowledge of the respondent-State of Jharkhand, but how such land has been said to be a Government land by the Circle Officer to the State and thus the said land was given to the National Highways Authority. It is a matter to be considered by this Court in view of the judgment passed by the Apex Court in the case of Syed Maqbool Ali vs. State of U.P. and Anr., reported in 2011(15) SCC 383 at para 9 which may profitably be quoted hereunder:-

"9. The remedy of a landholder whose land is taken without acquisition is either to file a civil suit for recovery of possession and/or for compensation, or approach the High Court by filing a writ petition if the action can be shown to be arbitrary, irrational, unreasonable, biased, mala fide or without the authority of law, and seek a direction that the land should be acquired in a manner known to law. The appellant has chosen to follow the second course. The High Court was not therefore, justified in dismissing the writ petition on the ground that the remedy was under section 18 of the Act. The order of the High Court, which is virtually a non-speaking order, apparently proceeded on the basis that appellant was seeking increase in compensation for an acquired land. The matter therefore requires to be reconsidered by the High Court, on merits."

Learned counsel for the petitioners has further submitted that it is a case where title has been perfected in favour of the petitioners in a Title Suit of the year, 1928 and subsequently in the year, 1950. Further, the Hon'ble Court in the judgment passed in CWJC No.1232 of 1993 has directed the State to proceed a Civil Suit, but it appears that these Circle Officers have nothing to do with the order and judgment passed by this Hon'ble Court and they behave like a Monarch in the State of Jharkhand. The Superior Revenue Authorities have no control over the functioning of the Circle Officers and thus litigations are multiplying before this Court by leaps and bounds because of arbitrary, irrational, unreasonable report submitted by the Circle Officer, behind back of the petitioners though the land receipt with regard to the Revenue has been issued by the Circle Officer and that was within knowledge of the Circle Officer that these lands are recorded in Register-II vide Mutation proceeding and they are paying rent.

Learned counsel for the petitioners has further submitted that so far section 29(3) of the Indian Forest Act is concerned, the large number of judgments have already been passed by the Supreme Court as well as High Court in the case of M/s. Jetmull Bhojraj vs. The State of Bihar and Others, reported in 1966 SCC OnLine Pat 85 : AIR 1967 Pat 287 affirmed by Hon'ble Apex Court in the case of M/s. Jethmull Bhojraj vs. State of Bihar and Others, reported in (1972) 1 SCC 714 and in the case of State of Bihar and Others vs. Lt. Col. K.S.R. Swami, reported in (1962) 3 SCR 727 : AIR 1966 SC 1847 and this LPA No.786 of 2018 and Special Leave to Appeal No.8108 of 2021 on 06.07.2021.

Learned counsel for the petitioners has further submitted that it is not fair for the State to deny the compensation as the title of the petitioners are never under dispute as demonstrated from the above submissions.

Learned counsel for the respondent- NHAI, Ms. Sweety Topno has submitted that for expansion and widening of the National Highway, the National Highway Authority has already deposited the compensation before the State Government, it is the duty of the State Government to disburse the same to the rightful claimant and since the State has declared this land to be forest land certainly the same comes under the authority of the Central Government and thus the amount has been deposited in the Forest Department as a diversified fund for the forest area.

Learned counsel for the respondent- NHAI, Ms. Sweety Topno has fairly submitted that it is total responsibility of the State Government and the Circle Officer to ascertain whether this land is a forest land or not?

Learned counsel for the respondent-State, Mr. Ashok Kumar Yadav has submitted that detail counter-affidavit has been filed by the Divisional Range Forest Officer 06.12.2016, but to clarify whether any enquiry under Section 29(3) Indian

Forest Act has been conducted and what action has been taken pursuant to the judgment passed by the Court in C.W.J.C. No.1232 of 1993 for which he may be granted two weeks' time to file affidavit.

Since, no affidavit has been filed by the Circle Officer that how this land has been declared to be a Government land, when the Government has lost the suit in the year, 1950, and the rent is being paid by the private parties, then why without notice to the parties such report has been submitted by the Circle Officer with regard to the transfer of this land to the Forest Department and subsequent acquisition by the National Highway Authority for extension of National Highway no.23.

This Court has considered such submissions in the writ petition of year, 2016 and grants two weeks' time to file a detail affidavit by the Deputy Commissioner, Bokaro on proper verification of the submissions made by the learned counsel for the petitioners and D.F.O., Bokaro is also directed to file an affidavit to the effect that whether any procedure has been adopted under Section 29(3) of the Indian Forest Act to declare the said land to be a forest land?

Put up this case on 22.02.2022.

It is expected that affidavit must be filed within a period of two weeks, failing which this Court shall impose heavy cost upon the erring officer(s).

Let a copy of this order be communicated through FAX to the learned Advocate General, Jharkhand, the Chief Secretary, Government of Jharkhand, Additional Chief Secretary, Department of Revenue, Registration & Land Reforms, Government of Jharkhand and Forest Secretary, Department of Forest Environment and Climate Change, Government of Jharkhand, Deputy Commissioner, Bokaro and District Forest Officer, Bokaro at once.

However, respondent- NHAI is also liberty to file counter-affidavit.

(Kailash Prasad Deo, J.) R.S.