Jharkhand High Court
Shadab Hussain vs State Of Jharkhand & Others on 13 July, 2022
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
W.P.(C) No. 3387 of 2020
........
Shadab Hussain ..... Petitioner
Versus
State of Jharkhand & Others ..... Respondents
CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
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For the Petitioner : Mr. Shahid Khan, Advocate
For the respondents/State : Mr. Subham Mishra, A.C. to
Mr. Amit Kumar, S.C.(Mines)-II
..........
06/13.07.2022.
Learned counsel for the petitioner, Mr. Shahid Khan has submitted,
that counter-affidavit has been filed on behalf of the respondent No.3,
Divisional Forest Officer, Lohardaga Forest Division, sworn by Shankar
Mahto, S/o Late Yogeshwar Mahto, Range Forest Officer, Kuru on
14.12.2020. Paras- 8 & 10 of which may profitably be quoted hereunder:-
"8. That it is humbly stated and submitted that Phulsuri Forest is a
notified protected Forest of area 71.20 acres in Phulsuri village of Thana-Kuru
of Lohardaga Forest Division, notified vide notification no. C/F-17033/55-
2180-R dated 1st July 1955 under the provision of Indian Forest Act, 1927,
which has been brought on record as Annexure-A to the counter-affidavit.
10. That it is humbly stated and submitted that the said land of Phulsuri
having plot numbers -91, 1040, 1069, 1070, 1071, 1072, 1073 are notified as
protected forest as per the provisions of section 29 of the Indian Forest Act,
1927. The said section 29 is reproduced as follows:-
"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 forest-produce of
which the Government is entitled.
(2) The forest-land and waste-land comprised in any such
notification shall be called a protected forest.
(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 meantime 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".
Learned counsel for the petitioner has further submitted, that
another counter-affidavit has been filed on behalf of the respondent No.5,
Circle Officer, Kuru (Lohardaga), sworn by Pravin Kumar Singh, S/o Sri
Suresh Singh, Circle Officer, Kuru, Lohardaga on 23.08.2021. Relevant
part of para- 8 and para-10 of which may profitably be quoted hereunder:-
"8. That the State has admitted, that the said plot situated at Mauza-
Phulsuri, Thana 67 bearing R.S. Khata No.151, Plot No.1040, total area
measuring 60 acres of land, nature of land "Manjhola Jangal land" and
recorded as "Garmajurwa Malik" in R.S. Khatiyan. However, in R.S. Register-
II, at page no.56, Volume II, a Jamabandi, bearing no. 151/5 is recorded in the
name of Bibi Saburan, W/o Mehboob Khan with respect to land measuring area
5 acres and rent receipt no. 4548 dated 31.03.1973 has been issued but plot
number of the said land is not entered in the Register-II and as such, said
Jamabandi appears to be doubtful.
10. That, further, as per the recent survey, recorded Khatiyani raiyats are
Bibi Samas, W/o of Nasir Ali, one part, Zubeda Khatoon, W/o Hazi Abdul Hafiz
one part and Sakhri Khatoon W/o Samauddin one part, all by cast Muslim,
resident of Hunhut. The recent survey recorded khatiyani raiyats have sold, out
of the aforesaid land, an area of 2.52 acres vide registered sale deed bearing no.
109 dated 31.01.2017 to Md. Shadab Hussain, S/o Md. Sadruddin."
Learned counsel for the petitioner has thus submitted, that if, a
Jamabandi has been opened, rightly or wrongly and continued for a long
time, state cannot cancelled the same on the ground that it is doubtful. The
only remedy lies to the State is to prefer a Civil suit before the competent
court of law for cancellation of the Jamabandi. The long standing
Jamabandi cannot be cancelled by the revenue authorities itself.
Learned counsel for the respondents/State, Mr. Subham Mishra,
A.C. to Mr. Amit Kumar, S.C.(Mines)-II has submitted, that though
conflicting counter-affidavits have been filed by the Forest Department as
well as the Revenue Department, both departments are under the
Additional Chief Secretary, Revenue, Registration and Land Reforms
Department, Government of Jharkhand and further plea has been taken
that an appeal being Appeal No.01/2021-2022 has been preferred before
LRDC, Lohardaga for cancellation of the mutation, record in the name of
petitioner.
This Court is surprised to see that how a long standing jamabandi
can be cancelled in an appeal before the LRDC, Lohardaga, contrary to the
judgment passed by the Apex Court.
Under the aforesaid circumstances, the Additional Chief Secretary,
Revenue, Registration and Land Reforms Department, Government of
Jharkhand, who is the head of both authorities, is directed to file a
comprehensive counter-affidavit within three weeks.
Put up this case on 10.08.2022 under the same heading.
(Kailash Prasad Deo, J.)
Jay/
