Jharkhand High Court
M/S. Bharat Coking Coal Limited vs The State Of Jharkhand on 12 November, 2024
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 5423 of 2016
----
M/s. Bharat Coking Coal Limited, a Central Government
Company, incorporated under the provision of Section 617 of
the Companies Act, having its registered office at Koyla
Bhawan, P.O. Koyla Nagar, P.S. Saraidhela, District
Dhanbad, through Harendra Kishore, son of Late Liladhar
Sharma, working as Head of Department (Legal), at Bharat
Coking Coal Limited, Koyla Bhawan, Koyla Nagar, P.O. Koyla
Nagar, P.S. Saraidhela, District Dhanbad (Jharkhand).
... ... ... Petitioner
-Versus-
1. The State of Jharkhand, through the Secretary,
Department of Forest, having its office at Nepal House,
Doranda, P.O. & P.S. Doranda, District Ranchi (Jharkhand).
2. Chief Conservator of Forest, having its office at Nepal
House, Doranda, P.O. & P.S. Doranda, District Ranchi
(Jharkhand).
3. Divisional Forest Officer, Dhanbad Forest Division,
Dhanbad, having its office at Combined Building, Luby
Circular Road, P.O. & P.S. Dhanbad, Town Dhanbad, District
Dhanbad (Jharkhand).
4. Deputy Commissioner, Dhanbad, P.O. & P.S. Dhanbad,
District Dhanbad (Jharkhand).
.........Respondents.
With
M/s. Bharat Coking Coal Limited, a Central Government
Company incorporated u/s 617 of the Companies Act, having
its registered office at Koyla Bhawan, P.O. Koyla Nagar, P.S.
Saraidhela, District Dhanbad through Harendra Kishore, son
of Late Liladhar Sharma working as Head of Department
(Legal) at B.C.C.L., Koyla Bhawan, Koyla Nagar, P.O. Koyla
Nagar, P.S. Saraidhela, District Dhanbad.
... ... ... Petitioner
-versus-
1. The State of Jharkhand through Secretary, Department of
Forest, having its office at Nepal house, Doranda P.0 &.PS:
Doranda Distt: Ranchi.
-1- W.P.(C) Nos. 5423/16 & 5149/10
2. Chief Conservator of Forest, having its office at Nepal
house, Doaranda P.O. & P.S. Doranda, Distt: Ranchi
3. The Divisional Forest Officer, Dhanbad Forest Division,
Combined Buliding, Luby Circular Road, P.O. & P.S.
Dhanbad Town, District Dhanbad
4.Deputy Commissioner, Dhanbad
... Respondents
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
------
For the Petitioner(s) : Mr. Indrajit Sinha, Advocate
Mr. Ankit Vishal, Advocate
Mr. Amitabh Prasad, Advocate
[In both cases]
For the Respondents : Mr. Kunal Chandra Suman, AC to GP II
[In WPC No. 5423/16]
Mr. Manish Mishra, GP V
Ms. Varsha Ramsisaria, AC to GP V
[In WPC 5149/10]
--------
CAV on 03/10/2024 Pronounced on 12th/11/2024
Per Sujit Narayan Prasad, J:
1. Since the issues involved in the both writ petitions are
identical, as such with the consent of learned counsel for the
parties, both the writ petitions were directed to be listed
together, as would appear from order dated 27.09.2016
passed by the learned Single Judge, as per roster during the
relevant period of time. Accordingly, both the writ petitioners
have been heard together and are being disposed of by this
common order.
Prayer:
-2- W.P.(C) Nos. 5423/16 & 5149/10
2. The writ petition being W.P. (C) No. 5149 of 2010, filed
under Article 226 of the Constitution of India, has been filed
for the following reliefs:
(i) For an appropriate writ, order or direction from this
Hon'ble Court for quashing of letter No. 3926 dated
25.08.2010 issued by the Respondent No. 3 whereby
and whereunder the petitioner has been restrained from
carrying out mining and other activities over the plot
Nos. 437, 419 and 230 of Jamdihi Mauza, P.S.
Chirkunda (Nirsa) at Dhanbad.
(ii). Upon quashing of letter No. 3926 dated 25.08.2010
for issuance of further writ/direction commanding upon
the concerned respondents to forbear them in interfering
the mining and other activities being carried out by the
petitioner over the land situated at plot Nos. 437, 419
and 230 of Jamdihi Mauza, P.S. Chirkunda (Nirsa) at
Dhanbad;
3. The writ petition, being W.P.(C) No. 5423 of 2016, filed
under Article 226 of the Constitution of India, has been filed
for the following reliefs:
a. For issuance of an appropriate writ, order or
direction, including writ in the nature of certiorari for
quashing Letter No.388 dated 17.8.2016 issued under
the signature of Regional Forest Officer, Urban
-3- W.P.(C) Nos. 5423/16 & 5149/10
Technical Region, Dhanbad, whereby and whereunder,
the petitioner has been directed to stop its mining
operation over an area of 141.5 acres of land (Later on
modified by letter contained in Memo no. 1983 dated
3.9.2016 to area excluding plot nos. 437, 230 and 419),
situated under Mauja Jamdihi, P.S. Chirkunda (Nirsa),
District Dhanbad, as the mining operation is being
carried on illegally and without permission of the Forest
Department, against which offence report bearing
no.112710 dated 9.5.2016 has been lodged;
b. For issuance of further appropriate writ, order or
direction, including writ in the nature of certiorari, for
quashing the letter, contained in Memo no.1983 dated
3.9.2016, whereby and whereunder, the Divisional
Forest Officer, Dhanbad has been pleased to direct the
General Manager of the petitioner- Company not to
carry on mining operation except over Plot Nos. 437,
230 and 419 in connection with an interim order of the
Hon'ble High Court of Jharkhand, Ranchi is in
operation;
c. For issuance of further appropriate writ, order or
direction, including writ in the nature of certiorari, for
quashing the show cause notice, contained in Letter
No.1984 dated 3.9.2016, issued to the Chairman- cum-
-4- W.P.(C) Nos. 5423/16 & 5149/10
Managing Director, Bharat Coking Coal Limited,
whereby and whereunder, noticee has been directed to
show cause as to why not an appropriate action and
contempt be initiated against the petitioner for flouting
the order of the Hon'ble Delhi High Court passed in
Application No.302 of 1995 dated 12.12.1996, as the
notice is carrying on illegal mining operation except on
Plot Nos.437, 230 and 419;
d. For issuance of further appropriate writ, order or
direction, including writ in the nature of certiorari, for
quashing the show cause notice, contained in Letter
No.1985 dated 3.9.2016, issued by the Divisional Forest
Officer, Dhanbad to the Chairman- cum-Managing
Director of Bharat Coking Coal Limited, directing him to
show cause as to why not a proceeding under the Forest
Conservation Act, 1980 be initiated for illegal mining
purportedly being carried out by the petitioner-Company
over an area of 141.5 acres of Jamdehi Reserved Forest
except on Plot Nos. 437, 230 and 419;
e. For issuance of further appropriate writ, order or
direction, including writ in the nature of certiorari, for
quashing the show cause notice, contained in Letter
no.1986 dated 3.9.2016 issued to the Director (P & P),
Bharat Coking Coal Limited, directing him to show
-5- W.P.(C) Nos. 5423/16 & 5149/10
cause as to why not an appropriate proceeding be
initiated in terms of Forest Conservation Act, 1980 for
illegal mining over an area of 141.5 acres of Jamdehi
Reserved Forest except on Plot Nos.437, 230 and 419;
f. Upon quashing the aforesaid letters bearing nos.1983,
1984, 1985 & 1986 all dated 3.9.2016, further for
issuance of an appropriate writ, order or direction,
directing and commanding upon the respondents to
forthwith forbear from interfering with mining operation
being carried on in Mauja Jamdihi, P.S. Chirkunda
(Nirsa), District Dhanbad.
Brief facts of the case:
4. The Bengal Coal Company Limited had initially taken
mokrari settlement and coal mining right in respect of lands
under Jamdihi Mouza area of about 1053 Bighas from the
proprietor of Sambandhpur Estate (Pandra) by virtue of
Registered Patta No.1268 B.S. dated 27th Agrahan.
5. It has been stated that from the registered lease deeds
dated 25.05.1937 and 05.04.1937, it is apparent that the
Bengal Coal Company Limited was in actual possession of
1053 Bighas 1 Katha 4 Chhatak of land and the company
was entitled to carry out mining activities on the aforesaid
lands. The Bengal Coal Company was in possession of the
aforesaid lands long before the Survey Settlement and the
-6- W.P.(C) Nos. 5423/16 & 5149/10
actual area recorded in their names under Khata nos.59 and
60 of Jamdihi Mouza and they were carrying mining activities
and the same also confirms from perusal of the Khatiyan of
the aforesaid land.
6. In the year 1960 by virtue of registered sale deed dated
10.08.1960 executed by said Bengal Coal Company, entire
lands situated at Jamdihi Mouza was sold and transferred to
Sri Mahavir Prasad Agarwal and Om Prasad Agarwal, who
also carried out mining over the aforesaid lands.
7. Thereafter, one Sri Prabhash Chandra Ojha and
Chuniram Rewani took settlement in the year 1944 with
respect to Plot nos.48 and 419 of Jamdihi Mouza and also
other lands, situated at the aforesaid Mouza for a period of 99
years, which was subsequently extended to 999 years by
registered deed of settlement executed in the year 1948 and
have started extracting coal from the aforesaid lands in the
name and style of Jamdihi Basantimate Colliery.
8. Later on, one Prakash Chandra Ojha and the legal heirs
of Chuniram Rewani had sold the Jamdihi Basantimate
Colliery along with right, title and interest over Plot Nos.48
and 419 and also other plots to one Md. Yusuf, who worked
till the nationalization of Coal Mines in the year 1973.
9. Plot nos.48 and 419 are within the lease hold
area/settlement area of Bengal Coal Company Limited and
-7- W.P.(C) Nos. 5423/16 & 5149/10
they have filed title suits, bearing Title Suit Nos.39 of 1956
and 13 of 1957, against Abdul Latif for declaration of right of
the Company with regard to the underground coal and coal
mining right over Plot nos.48 and 419, under Khata no.59,
situated at village Jamdihi and also for recovery of possession
of the same and other reliefs. The aforesaid title suits were
decreed in part and the defendants were permanently
restrained from interfering with the possession of the plaintiff
in the aforesaid plots and, thereafter, the aforesaid judgment
and decree was confirmed by the Appellate Court in Title
Appeal Nos.13 and 14 of 1962.
10. At the time of nationalization of Coal Mines, over Plot
Nos.437, 419 and 230 of Jamdihi Mouza, two collieries were
operating i.e. Dahibari Colliery owned by Dahibari Colliery
Company and Jamdihi Basantimate Colliery owned by
Jamdihi Coal Company, which were nationalized by virtue of
Coal Mines Nationalization Act, 1973 and compensation
amount of Rs.7,50,100/- and Rs.4,43,800/- was also paid to
the respective proprietors and the aforesaid collieries,
including the land, building, tramline, vehicles, etc. were
vested with the Central Government free from all
encumbrances. This fact is apparent from the schedule of
Coal mines Nationalization Act, 1973, at sl. Nos.227 and 237.
-8- W.P.(C) Nos. 5423/16 & 5149/10
11. It is the case of the petitioner that since the
nationalization of aforesaid collieries, the petitioner-BCCL is
continuing with the mining activities in the aforesaid
collieries till date. Further, since the nationalization of the
aforesaid collieries no objection was raised from any corner
against the petitioner regarding mining activities and only in
the year 2010, the forest officials visited the Dahibari Colliery
and Jamdihi Basantimate Colliery and Respondent no.3 had
issued a letter, bearing Letter no.3926 dated 25.8.2010,
whereby and whereunder, the petitioner had been restrained
from carrying out mining and other activities over Plot
nos.437, 419 and 230 of Jamdihi Mouza, P.S. Chirkunda
(Nirsa), District Dhanbad.
12. Aggrieved thereof, the petitioner has approached this
court by filing writ petition being W.P. (C) No. 5149 of 2010.
13. During pendency of the writ petition W.P. (C) No. 5149
of 2010, this Court passed an interim order dated 19.01.2011
whereby the operation of the impugned order dated
25.08.2010 has been stayed. Thereafter, the petitioner has
resumed mining operation.
14. However, thereafter while undertaking the mining
operation a truck bearing Registration No. JH-10AM-0131
unloading dumped mineral over plot no. 230 was intervened
by the Forest Authorities stating that no permission for
-9- W.P.(C) Nos. 5423/16 & 5149/10
dumping on the said plot has been obtained from the
concerned department. On the basis of such allegation a
forest offence report was lodged by Forest Range Officer,
Nirsa Range bearing No. 112710 dated 09.05.2016.
15. On the basis of aforesaid offence report, the Divisional
Forest Officer issued a letter dated 17.08.2016 directing the
officer of the petitioner-company to forthwith stop mining
operation over an area of 141.5 acres of land.
16. After issuance of letter dated 17.8.2016, the Divisional
Forest Officer, Dhanbad vide its letter, contained in Memo
No.1983 dated 3.9.2016, addressed to the General Manager,
Chanch Victoria Area No.XII, Bharat Coking Coal Limited,
whereby and whereunder, it is clarified that since an interim
order is in operation, concerning Plot Nos.437, 230 and 419,
Bharat Coking Coal Limited is carrying on illegal mining on
the rest of the area measuring 141.5 acres, claimed to be
forest land, and, therefore, the mining operation on the said
area should be immediately stopped.
17. The aforesaid letter was followed by another letter,
bearing no.1984 dated 03.09.2016, whereby and whereunder,
the noticee-Chairman-cum-Managing Director, Bharat
Coking Coal Limited has been directed to show cause as to
why not an appropriate action and contempt be not initiated
against the petitioner for flouting the order of the Hon'ble
- 10 - W.P.(C) Nos. 5423/16 & 5149/10
Supreme Court of India passed in Application No.302 of 1995
dated 12.12.1996, as the noticee is carrying on illegal mining
operation except on Plot Nos.437, 230 and 419.
18. Thereafter, another show cause notice, contained in
Letter No.1985 dated 03.09.2016, was issued by the
Divisional Forest Officer, Dhanbad to the Chairman-cum-
Managing Director of Bharat Coking Coal Limited, directing
him to show cause as to why not a proceeding under the
Forest Conservation Act, 1980 be initiated for illegal mining
purportedly being carried out by the petitioner-Company over
an area of 141.5 acres of Jamdehi Reserved Forest except on
Plot Nos. 437, 230 and 419.
19. Again, show cause notice, as contained in Letter
no.1986 dated 3.9.2016, was issued to the Director (P & P),
Bharat Coking Coal Limited, directing him to show cause as
to why not an appropriate proceeding be initiated in terms of
Forest Conservation Act, 1980 for illegal mining over an area
of 141.5 acres of Jamdehi Reserved Forest except on Plot
Nos.437, 230 and 419.
20. Aggrieved with the impugned letter dated 17.08.2016
whereby the petitioner was directed to stop mining operation
over an area of 141.5 acres of land; and letter dated
03.09.2016, whereby and whereunder, the Divisional Forest
Officer, Dhanbad has directed the General Manager of the
- 11 - W.P.(C) Nos. 5423/16 & 5149/10
petitioner- Company not to carry on mining operation except
over Plot Nos. 437, 230 and 419 in connection with an
interim order of the Hon'ble High Court of Jharkhand, Ranchi
is in operation and also letter dated 03.09.2016, whereby
show cause has been issued upon the petitioner, the
petitioner has approached this Court by filing W.P.(C) No.
5423 of 2016.
Submission on behalf of petitioner-BCCL:
21. Learned counsel for the petitioner -BCCL has assailed
the impugned orders passed by the respondents-authorities,
by taking following grounds:
I. Initially, the Bengal Coal Company Limited took
mokrari settlement and coal mining right in respect of
lands under Jamdihi Mouza area of about 1053 Bighas
from the proprietor of Sambandhpur Estate (Pandra) and
came in actual possession thereof by virtue of Registered
Patta No.1268 B.S. dated 27th Agrahan.
II. Thereafter, in the year 1960 by virtue of registered sale
deed dated 10.08.1960 executed by said Bengal Coal
Company, entire lands situated at Jamdihi Mouza was
sold and transferred to Sri Mahavir Prasad Agarwal and
Sri Om Prasad Agarwal, who also carried out mining over
the aforesaid lands.
- 12 - W.P.(C) Nos. 5423/16 & 5149/10
III. It is stated that one Sri Prabhash Chandra Ojha
and Chuniram Rewani took settlement in the year 1944
with respect to Plot nos.48 and 419 of Jamdihi Mouza
and also other lands, for a period of 99 years, which was
subsequently extended to 999 years by registered deed of
settlement executed in the year 1948 and have started
extracting coal from the aforesaid lands in the name and
style of ‗Jamdihi Basantimate Colliery.
IV. Later on, Prakash Chandra Ojha and the legal
heirs of Chuniram Rewani had sold the Jamdihi
Basantimate Colliery along with right, title and interest
over Plot Nos.48 and 419 and also other plots to one Md.
Yusuf, who worked till the nationalization of Coal Mines
in the year 1973.
V. Learned counsel for the petitioner further states that
Plot nos.48 and 419 are within the lease hold
area/settlement area of Bengal Coal Company Limited
and they have filed title suits, bearing Title Suit Nos.39 of
1956 and 13 of 1957, for declaration of right of the
Company with regard to the underground coal and coal
mining right over Plot nos.48 and 419, under Khata
no.59, situated at village Jamdihi and also for recovery of
possession of the same. The aforesaid title suits were
decreed in part and the defendants were permanently
- 13 - W.P.(C) Nos. 5423/16 & 5149/10
restrained from interfering with the possession of the
plaintiff in the aforesaid plots and, thereafter, the
aforesaid judgment and decree was also confirmed by the
Appellate Court in Title Appeal Nos.13 and 14 of 1962.
VI. Learned counsel for the petitioner submits that at
the time of nationalization of Coal Mines, over Plot
Nos.437, 419 and 230 of Jamdihi Mouza, two collieries
i.e. Dahibari Colliery owned by Dahibari Colliery
Company and Jamdihi Basantimate Colliery owned by
Jamdihi Coal Company, were operating which were
nationalized by virtue of Coal Mines Nationalization Act,
1973 and for that even the compensation amount to the
tune of Rs.7,50,100/- and Rs.4,43,800/- was also paid to
the respective proprietors.
VII. Submission has been made that from the aforesaid
factual aspect, it is evident that the entire Jamdihi Mouja
has been vested with the petitioner upon coming into
force of the Coking Coal Mines Nationalization Act,
therefore, the land in question cannot be said to be forest
land in any manner. Moreover, the land claimed by the
respondents as forest land is scattered in patches and
does not have a single tree standing, which could
otherwise give it the nature of forest land.
- 14 - W.P.(C) Nos. 5423/16 & 5149/10
VIII. It has been submitted that upon insistence of the
authorities the petitioner as well as the forest authorities
conducted a joint inspection and report was prepared
upon such inspection, which clearly reveals that the
entire Mouja Jamdihi covering 141.5 acres of land is non-
forest land and the mining operation over the said Mauja
is being carried out since long.
IX. Submission has been made that the petitioner-
BCCL after nationalization of Coal Mines is carrying out
the mining operation without any objection from any
corner but all of a sudden in the year 2010, the impugned
letter dated 25.08.2010 has been issued restraining the
petitioner-BCCL from carrying out the mining and other
activities over plot nos. 437, 419 and 230 of Jamdihi
Mouza, Dhanbad.
X. The said decision as contained in letter dated
25.08.2010 is based upon the State Government
notification dated 23.09.1964 issued under power
conferred under Section 29(3) of the Indian Forest Act,
1927.
XI. Being aggrieved, the petitioner approached this
Court by filing WPC No. 5149 of 2010, in which interim
order of stay was passed whereupon the petitioner
resumed the mining operation but the authorities of the
- 15 - W.P.(C) Nos. 5423/16 & 5149/10
Forest Department again made objection stating that the
plot on which the mining mineral is being dumped is a
forest land and no permission for dumping on the said
plot has been obtained from the concerned department
and directed the petitioner to forthwith stop mining
operation over plot an area of 141.5 acres of land vide
letter dated 17.08.2016 followed by letter dated
03.09.2016 as also show cause notice was issued upon
the petitioner as to why a proceeding under the Forest
Conservation Act, 1980 be not initiated against it.
XII. Aggrieved thereof, the petitioner again approached
this Court by filing writ petition being WPC No. 5423 of
2016.
XIII. The ground has been taken in assailing such
decision of the State authority of the forest department
that the restrainment order is per se illegal on the basis of
the fact that Section 29(3) does not confer any power
upon the State to pass restrainment order rather Section
29(3) confers power upon the State to carry out enquiry to
be conducted that by the forest authority and till the
submission of the enquiry report the existing right of the
party will subsist.
XIV. It has been contended that the notification under
the proviso to Section 29(3) of the Forest Act, 1927 is of
- 16 - W.P.(C) Nos. 5423/16 & 5149/10
23.09.1964, which itself suggests that the enquiry is to be
conducted by the forest authority and till the enquiry
report is submitted, the right of the parties is to be
maintained. But contrary to the said provision and
without bringing any fact-finding report, in terms of
Section 29(3) of the Indian Forest Act, 1927, the order of
restrainment, has been passed which is absolutely illegal
and improper.
XV. Further submission has been made that the land
was settled in the year 1937 in favour of Bengal Coal
Company and thereafter leased out initially for 99 years
which was extended up-to 999 years by registered deed of
settlement executed in the year 1948 and thereafter coal
have been extracted from the aforesaid lands in the name
and style of Jamdihi Basantimate Colliery.
XVI. It has further been submitted that at the time of
nationalization of Coal Mines, over Plot Nos.437, 419 and
230 of Jamdihi Mouza, two collieries i.e. Dahibari Colliery
and Jamdihi Basantimate Colliery were operating which
were nationalized by virtue of Coal Mines Nationalization
Act, 1973 and for that due compensation amount was
also paid to the respective proprietors. Hence, the land
which was in favour of the raiyats/proprietors and leased
out in favour of block-hold companies so far mining
- 17 - W.P.(C) Nos. 5423/16 & 5149/10
operations are concerned, no such order of restrainment
ought to have been passed by the State restraining the
petitioner from mining operation over the plot in question.
XVII. The ground has been taken that after coming into
effect of Coal Mines Nationalization Act, 1973, the land
which was being used for the purpose of carrying out the
mining operation, will be protected under the policy as
stipulated under Coal Mines Nationalization Act, 1973
and by virtue of that since mining operation was carried
out, hence, in that view of the matter there cannot be any
restrainment order in view of Section 29(3) of the Forest
Act, 1927.
22. Learned counsel for the petitioner, based upon the
aforesaid ground has submitted that the impugned orders
suffer from error and are not sustainable in the eyes of law.
Submission on behalf of respondents-State: -
23. Learned counsel for the respondents-State has defended
the impugned orders by placing reliance upon the averments
made in the counter affidavit:
I. It has been stated that a total area of 154.70 acres
in Mouza Jamdihi has been notified as ‗Protected
Forest' under Section 29 of the Indian Forest Act,
1927 vide notification dated 23.09.1964. As per
provision laid down under Section 29(3) of the Indian
- 18 - W.P.(C) Nos. 5423/16 & 5149/10
Forest Act, 1927 rights of Government and of private
persons in or over the forest land were enquired into
by the Forest Settlement Officer, appointed for the
purpose, who after due process demarcated the forest
boundary on the map in green line and recorded a
certificate to that effect on the map itself.
II. It has been submitted that prior to the notification
under the Indian Forest Act, the said land was
notified as Private Protected Forest under Section 13
of the Bihar Private Forests Act, 1947 vide notification
dated 28.04.1947.
III. It has been submitted by referring to Bihar Private
Forest Act, 1947 whereby and whereunder all the
private forests have been put under the control of the
erstwhile State of Bihar and it is on the basis of that
notification has been issued in view of provision of
Section 29(3) of the Indian Forest Act, 1927 on
23.09.1964.
IV. The contention has been raised that since by virtue of
notification dated 28.04.1947, the private forest land
is also to be taken care of and hence all the forests
which were within the exclusive title of the private
raiyats or the private parties, the same is also to be
protected under the object and intent of the said
- 19 - W.P.(C) Nos. 5423/16 & 5149/10
notification dated 28.04.1947 and it is in these
circumstances and by taking aid of Section 29(3) of
the Indian Forest Act, 1927, the notification has been
issued on 23.09.1964 declaring the area to be
protected forest and in that view of the matter, the
impugned order of restrainment has been passed
since no permission was sought for by the petitioner
from the State authority particularly from the Forest
Department of the State to carry out the mining
operation in that area.
V. Learned counsel for the State has relied upon the
provisions of Bihar Land Reforms Act, 1950 wherein
also it has been provided that the lands, which are of
the land lords, are vested in the State and in that
view of the matter, the land since is of the King
Bandvasani, hence, as per the object and intent of
Bihar Land Reforms Act, 1950, the land in question is
also said to be vested with the State and in that view
of the matter it is the mandatory requirement by the
petitioner to seek permission to carry out the mining
operation. But no such permission was sought for as
such order of restrainment was passed, which suffers
from no error.
- 20 - W.P.(C) Nos. 5423/16 & 5149/10
24. The learned State counsel, based upon the aforesaid
ground, has submitted that impugned orders since have been
issued on consideration of the ground as referred
hereinabove, as such the same are not fit to be interfered
with.
Analysis:
25. We have heard learned counsel for the parties, gone
across the pleading made in the writ petitions as also in the
counter affidavits and the relevant provisions of law.
26. In the backdrop of the aforesaid facts this Court is of the
view that following issues are required to be answered for
proper adjudication of the present lis:
(I) Whether Bihar Land Reform Act, 1950 will be
applicable in the factual aspects of the instant case?
(II)Whether by virtue of notification dated 28.04.1947 since
the State of Bihar has taken decision to bring the
private forests also under the fold of protected area,
hence the provision of Section 29 of the Indian Forest
Act, 1927 will be applicable herein?
(III) Whether the private forest is to be brought under the
fold of proviso to sub-section (3) to Section 29 of the
Indian Forest Act, 1927?
(IV) Whether the mining operation as being carried out by
virtue of Coal Nationalization Act, 1973 in particular
- 21 - W.P.(C) Nos. 5423/16 & 5149/10
area, then the State without determining and without
getting the report in view of provision of section 29(3) of
the Act, 1927, can pass such restrainment orders.
27. Since all the issues are interlinked, the same are being
taken up together.
28. This Court, before delving upon the issues, considers it
fit and proper to reiterated the factual aspects and relevant
provisions of law, which are necessary for deciding the issues
involved herein.
29. It is pleaded herein that initially the Bengal Coal
Company Limited had taken mokrari settlement and coal
mining right in respect of lands in question. In the year 1960
by virtue of registered sale deed dated 10.08.1960 executed
by said Bengal Coal Company, entire lands situated at
Jamdihi Mouza was sold and transferred to Sri Mahavir
Prasad Agarwal and Om Prasad Agarwal, who also carried out
mining over the aforesaid lands.
30. Thereafter, one Sri Prabhash Chandra Ojha and
Chuniram Rewani took settlement in the year 1944 for a
period of 99 years, which was subsequently extended to 999
years by registered deed of settlement executed in the year
1948 and have started extracting coal from the aforesaid
lands in the name and style of Jamdihi Basantimate Colliery.
- 22 - W.P.(C) Nos. 5423/16 & 5149/10
31. Later on, one Prakash Chandra Ojha and the legal heirs
of Chuniram Rewani had sold the Jamdihi Basantimate
Colliery along with right, title and interest of land in question
to one Md. Yusuf, who worked till the nationalization of Coal
Mines in the year 1973.
32. Further the title suits, bearing Title Suit Nos.39 of 1956
and 13 of 1957, were filed against Abdul Latif for declaration
of right of the Company with regard to the underground coal
and coal mining right over Plot nos.48 and 419, under Khata
no.59, situated at village Jamdihi. The aforesaid title suits
were decreed in part and the defendants were permanently
restrained from interfering with the possession of the plaintiff
in the aforesaid plots. The judgment and decree passed in the
title suits were confirmed by the Appellate Court in Title
Appeal Nos.13 and 14 of 1962.
33. At the time of nationalization of Coal Mines, over Plot
Nos.437, 419 and 230 of Jamdihi Mouza, two collieries were
operating i.e. Dahibari Colliery owned by Dahibari Colliery
Company and Jamdihi Basantimate Colliery owned by
Jamdihi Coal Company, which were nationalized by virtue of
Coal Mines Nationalization Act, 1973 and compensation to
the tune of Rs.7,50,100/- and Rs.4,43,800/- was also paid to
the respective proprietors, which is apparent from the
- 23 - W.P.(C) Nos. 5423/16 & 5149/10
schedule of Coal mines Nationalization Act, 1973, at Sl.
Nos.227 and 237.
34. The land in question is shown to be in possession of
raiyats since the year 1937, although reference of King
Bandvasani has been made in order to take aid of the object
and intent of Bihar Land Reforms Act, 1950 since in the
Bihar Land Reforms Act, 1950 provision has been made by
conferring power upon the Collector to conduct an enquiry if
any land has been settled by the ex landlord in order to
frustrate the provisions of Bihar Land Reforms Act, 1950 by
settling it on or after 01.01.1946 for the purpose of
annulment of the transfer subject to approval by the State
Government.
35. Therefore, the very object and intent of the Bihar Land
Reforms Act, 1950 needs to refer herein along with the
provisions of Section 4(h) and (hh), which reads as under:
"4(h) The Collector shall have power 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, [* * *] [Substituted by Act 20 of
1954.] and if he is satisfied that such transfer was made
[at any time after the first 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 [* *
- 24 - W.P.(C) Nos. 5423/16 & 5149/10
*] [Inserted by Act 16 of 1959.] 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:] [Inserted by
Act 16 of 1959.]
Provided further 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.]
4(hh) The Collector shall have power 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 first 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:]
36. It is not in dispute that Bihar Land Reforms Act, 1950
has been enacted to dispense with the intermediary system
- 25 - W.P.(C) Nos. 5423/16 & 5149/10
so that the rent be directly deposited in the State exchequer
by the raiyats and not to the land lord, the intermediaries.
37. However, the vesting of the land is to be followed after
making payment of compensation in favour of raiyats on the
basis of rent receipts issued by the landlords.
38. The legislation contained a provision as under Section 4-
h, to achieve the object and intent of the Bihar Land Reforms
Act, 1950 so that there may not be any settlement of land
after coming into effect of Bihar Land Reforms Act, 1950 and
if the settlement has been made post 01.01.1946, then the
inquiry in terms of provisions of Section 4(h) is to be done for
the purpose of providing reasonable opportunity of hearing.
39. The reference of Bihar Land Reforms Act, 1950 is made
herein since one of the arguments of the respondent-State is
that in view of the provisions of Bihar Land Reforms Act,
1950, the land which is being used for the purpose of mining
operation will be said to be vested in the State therefore,
permission from the State is mandatory.
40. The provision of notification of 1947 is required to be
discussed herein, since the same has been taken as a ground
to inter-link the conduct of the petitioner by way of
conferment of power upon it to take action in pursuance to
provisions of Bihar Land Reforms Act, 1950 as also the
- 26 - W.P.(C) Nos. 5423/16 & 5149/10
relevant provisions of the Indian Forest Act, 1927 in
particular Section 29(3) thereof.
41. The notification of the year 1947, was issued on
28.04.1947 under Sections 14 and 15 (3) of Bihar Private
Forest Act for the purpose of taking care of the private forest
area of the erstwhile State of Bihar in the pre-independence
period. Under section 14 of the said Act, it is stipulated that
whenever it is proposed by the [State]Government to
constitute any private forest, a private protected forest,
the [State]Government shall issue a notification declaring
that it is proposed to constitute such forest a private
protected forest.
42. Further under Section 15 of the said Act it is stipulated
that the Collector shall in the prescribed manner hear any
objection presented under clause (c) of Section 14 and shall
pass an order dismissing such objection, or directing that the
proposal to constitute the said forest a private protected
forest shall be dropped either in respect of the whole of the
said forest or in respect of a part of it to be specified in the
order.
43. The provisions of the Bihar Private Forests Act, 1947, in
respect of private protected forests, are contained in Chapter
II of the Act. The scheme of these provisions is that the State
Government on being satisfied that it is necessary in the
- 27 - W.P.(C) Nos. 5423/16 & 5149/10
public interest to apply the provisions of the chapter to any
private forest, may constitute such forest a protected forest in
the manner laid down; the first step that has to be taken is
the issue of a notification under Section 14 declaring that it is
proposed to constitute a forest a private protected forest and
calling for objections of all landlords whose interests are
likely to be affected. The hearing of objections is provided for
in Section 15, sub section 3 of which section further
provides that if no objection is presented or when objection is
so presented and finally disposed of the Government may
issue a notification declaring its decision to constitute the
area a private forest and appointing an officer "to enquire into
and determine the existence, nature and extent of any rights
other than landlord's rights, alleged to exist in favour of any
person in or over any land in the forest‖.
44. Section 16 provides that on the issue of such a
notification under sub-section 3 of Section 15 the Forest
Settlement Officer shall publish a proclamation fixing a
period of not less than three months from the date of such
proclamation for claims to be made by all persons as regards
rights other than landlord's rights.
45. Section 17 empowers the Forest Settlement Officer to
enquire into all claims preferred in response to the
notification and also into the existence of any rights
- 28 - W.P.(C) Nos. 5423/16 & 5149/10
mentioned in sub-section 3 of Section 15 and not claimed
under Section 16.
46. Section 22 of this Chapter deals with the procedures for
dealing with claims of forest contractors and grantees.
Section 23 provides that in the case of claim to a right in or
over any land other than a right of way or right of pasture or
a right to forest produce or water course the Forest
Settlement Officer shall pass an order admitting or rejecting
the same in whole or in part subject to the provisions of
Sections 25 and 26.
47. Section 27 gives a right of appeal to any person who has
made a claim under Section 16 or Section 22 against the
order passed by the Forest Settlement Officer under Sections
22, 23, 24 or 26. Section 30 provides for the final action to be
taken by the Government in the matter of constituting a
private protected forest.
48. It requires to refer herein that the Hon'ble Apex Court in
the case of State of Bihar and Ors. Vs. Lt. Col. K.S.R.
Swami 1961 SCC OnLine SC 351 has held that the
notification under Section 14 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
- 29 - W.P.(C) Nos. 5423/16 & 5149/10
appeals are not stopped by the declaration under the proviso.
For ready reference the relevant paragraph of the aforesaid
Judgment is being quoted as under:
"9.It is abundantly clear that the 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 Section 16 for preferring
claims (i) has not expired; (ii) claims under Sections 16 and
22 have not been disposed of; (iii) the periods limited by
Section 27 for appealing from the orders passed in respect
of those claims have not elapsed and (iv) all appeals
preferred against such orders have been disposed of."
10. Turning now to Section 19 of this Chapter we find it
laying down that "rights (other than landlord's rights) in
respect of which no claim has been preferred under Section
16 and of the existence of which no knowledge has been
acquired by enquiry under Section 17, shall be
extinguished, unless, before the notification under Section
30 is published, the person claiming them satisfies the
Forest Settlement Officer that he had sufficient cause for
not preferring such claim within the period fixed under
Section 16"
49. It needs to refer herein that The Forest Act, 1927 is a
pre-constitutional legislation enacted by the Indian
- 30 - W.P.(C) Nos. 5423/16 & 5149/10
Legislature as per Section 63 of the Government of India Act,
1915. The 1927 Act was the law enforced in the territory of
India immediately before the commencement of the
Constitution and by virtue of Article 372 of the Constitution
of India, the 1927 Act continues in force until altered or
repealed by a competent legislation. The 1927 Act was
enacted to consolidate the law relating to forests, the transit
of forest produces and the duty leviable on timber and other
forest produce.
50. Relevant provision of the said statute is provided under
Section 29, which is having three sub provisions. Relevant
herein is sub-section 3 thereof, which is being referred
herein:
29. Protected forests.--(1) The 1 [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.
- 31 - W.P.(C) Nos. 5423/16 & 5149/10
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 1 [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.
51. It is evident from the provision of Section 29 thereof that
the State Government may, by notification in the Official
Gazette, declare the provisions 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. Further, it has been provided that the forest-land
and waste-lands comprised in any such notification shall be
called a ―protected forest‖.
52. Thus, it is evident that Sub-section (1) of Section 29
permits the State Government to issue notification declaring
the application of the provisions of Chapter IV to any forest
land which is not included in a reserved forest but which is
the property of government, or over which the government
has proprietory rights, or to the whole or any part of the
forest produce of which the government is ‗entitled'. The
- 32 - W.P.(C) Nos. 5423/16 & 5149/10
forest land comprised in any such notification is called a
‗protected forest'.
53. Further, it is settled position of law that before Section
29(1) by the State Government, it must be shown that the
requirements of that provision are satisfied.
54. Sub-Section 3 of Section 29 thereof says that 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.
55. The said inquiry is contemplated to determine the
nature and extent of the rights of the government and of
private persons in or over the forest land. Based on the
findings of the inquiry the record is to be prepared. Further,
- 33 - W.P.(C) Nos. 5423/16 & 5149/10
under sub-section (3) such a record shall be presumed to be
correct until the contrary is proved. The presumption,
therefore, attaches to the record prepared in pursuance of the
inquiry.
56. The Section 29(3) particularly its proviso whereby power
has been conferred upon the State 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 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.
57. Now, adverting to the factual aspect of the present case,
herein it is admitted fact that the land was in possession of
the private parties/raiyats. The said fact is also evident from
the decree passed in title suits, being Title Suit Nos.39 of
1956 and 13 of 1957, filed against Abdul Latif, which were
decreed in part and thereby the defendants were permanently
restrained from interfering with the possession of the plaintiff
in the aforesaid plots and, thereafter, the aforesaid judgment
and decree was also confirmed by the Appellate Court in Title
Appeal Nos.13 and 14 of 1962.
- 34 - W.P.(C) Nos. 5423/16 & 5149/10
58. The relevance of the year is having bearing herein in
order to consider the argument advanced on behalf of the
State with respect to the applicability of the provisions of
Bihar Land Reforms Act, 1950.
59. The applicability of Bihar Land Reforms Act, 1950 is to
be considered on the basis of power, which is to be exercised
for the purpose of vesting of the land, which is in terms of the
provisions of Section 4(h) of the Bihar Land Reforms Act,
1950.
60. It is evident from the provisions of Section 4(h) that the
Collector shall have power 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 first 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.
- 35 - W.P.(C) Nos. 5423/16 & 5149/10
61. Here, it appears that the land in question has been
settled since 1937, which were in exclusive possession of the
private parties, which were settled in favour of Bengal Coal
Company by virtue of registered sale deeds.
62. This Court in view of the fact that the land in question is
in possession of the private raiyats since the year 1937 and
documents to that effect has also been relied upon by the
petitioner and the title over the land in question has also
been affirmed in the title suits, which were affirmed in the
title appeals filed by the aggrieved.
63. Hence, this Court is not hesitant in coming to the
conclusion that it is pre cut-off date i.e., 01.01.1946,
therefore, the provision of Section 4(h) will not be applicable
in the facts and circumstances of the present case.
64. The second argument which has been advanced on
behalf of State that the private forests have also been decided
to be declared under the protected forest in view of
notification of the State of Bihar issued on 28.04.1947 and
the bearing of Section 29(3) of the Indian Forest Act, 1927
will be there and that is the reason the restrainment order
has been issued since the area has been declared to be
protected forest.
65. We have already referred that of notification of the year
1947, which is for the purpose of taking care of the private
- 36 - W.P.(C) Nos. 5423/16 & 5149/10
forest by the erstwhile State of Bihar in the pre-independence
period.
66. The purpose of coming out with the said notification
appears to be that under the Indian Forest Act, 1927 which is
also a pre-independence statutory provision, the forest land is
only the subject matter.
67. Learned counsel for the State, therefore, has tried to
impress upon the Court by virtue of notification dated
28.04.1947 since the State of Bihar has taken decision to
bring the private forests also under the fold of protected area,
hence the provision of Section 29 of the Indian Forest Act,
1927 will apply.
68. This Court is of the view that admittedly the erstwhile
State of Bihar, in the pre-independence period, has come out
with notification to take care of the private forest land.
69. But it is admitted position that under the provision of
29(3) of the Indian Forest Act, 1927, no amendment has been
carried out in that respect.
70. The question, therefore, would be that merely because
the State of Bihar has come out with a notification in the year
1947, will such notification amount to an addition to the
statutory provision as contained under Section 29(3) of the
Indian Forest Act, 1927.
- 37 - W.P.(C) Nos. 5423/16 & 5149/10
71. Herein, it is not in dispute that Indian Forest Act, 1927
is the Central Legislation, although of pre-independence
period, but constitutional validity has been accepted under
the saving clause as provided under the Constitution of India.
72. The aforesaid fact cannot be disputed since even as per
the case of the State, the restrainment order is based upon
the notification issued under Section 29(3) of the Indian
Forest Act, 1927.
73. Further, the law is well settled that there cannot be any
insertion by the State in the Central Legislation particularly
the legislation if has been deemed to be assented earlier by
the Central Government.
74. Herein, the reference the mandate of Article 254 of
Constitution of India needs to be referred, which reads as
under:
254. Inconsistency between laws made by Parliament and
laws made by the Legislatures of States.--
(1) If any provision of a law made by the Legislature of a
State is repugnant to any provision of a law made by
Parliament which Parliament is competent to enact, or to
any provision of an existing law with respect to one of the
matters enumerated in the Concurrent List, then, subject to
the provisions of clause (2), the law made by Parliament,
whether passed before or after the law made by the
Legislature of such State, or, as the case may be, the
existing law, shall prevail and the law made by the
Legislature of the State shall, to the extent of the
repugnancy, be void.
- 38 - W.P.(C) Nos. 5423/16 & 5149/10
(2) Where a law made by the Legislature of a State 1 ***
with respect to one of the matters enumerated in the
Concurrent List contains any provision repugnant to the
provisions of an earlier law made by Parliament or an
existing law with respect to that matter, then, the law so
made by the Legislature of such State shall, if it has been
reserved for the consideration of the President and has
received his assent, prevail in that State:
Provided that nothing in this clause shall prevent
Parliament from enacting at any time any law with respect
to the same matter including a law adding to, amending,
varying or repealing the law so made by the Legislature of
the State.
75. It is evident from the provision of Article 254 that
binding effect is to be considered in the light of Article 254 of
the Constitution of India. If the legislation has been assented
by the President, then the same cannot be given go by or
allowed to be prevailed upon by any legislation formulated by
the State even assented by the Governor, which is evident
from Article 254 (1) of the Constitution of India.
76. As per mandate of Article 254(1) if any provision of law
made by the Legislature of a State is repugnant to any
provision of a law made by Parliament which Parliament is
competent to enact, or to any provision of an existing law
with respect to one of the matters enumerated in the
Concurrent List, then, subject to the provisions of clause (2),
the law made by Parliament, whether passed before or after
the law made by the Legislature of such State, or, as the case
may be, the existing law, shall prevail and the law made by
- 39 - W.P.(C) Nos. 5423/16 & 5149/10
the Legislature of the State shall, to the extent of the
repugnancy, be void.
77. While on the other hand, as per stipulation prescribed
in Article 254(2) a law made by the Legislature of a State with
respect to one of the matters enumerated in the Concurrent
List contains any provision repugnant to the provisions of an
earlier law made by Parliament or an existing law with
respect to that matter, then, the law so made by the
Legislature of such State shall, if it has been reserved for the
consideration of the President and has received his assent,
prevail in the State, reference in this regard may be made to
the judgment rendered by the Hon'ble Apex Court in the case
of M. Karunanidhi v. Union of India, (1979) 3 SCC 431,
wherein, at paragraph-8, 24 & 25, it has been held as
under:--
"8. It would be seen that so far as clause (1) of Article
254 is concerned it clearly lays down that where there is a
direct collision between a provision of a law made by the
State and that made by Parliament with respect to one of
the matters enumerated in the Concurrent List, then,
subject to the pro-visions of clause (2), the State law would
be void to the extent of the repugnancy. This naturally
means that where both the State and Parliament occupy
the field contemplated by the Concurrent List then the Act
passed by Parliament being prior in point of time will
prevail and consequently the State Act will have to yield to
the Central Act. In fact, the scheme of the Constitution is a
scientific and equitable distribution of legislative powers
between Parliament and the State Legislatures. First,
- 40 - W.P.(C) Nos. 5423/16 & 5149/10
regarding the matters contained in List I, i.e. the Union List
to the Seventh Schedule, Parliament alone is empowered to
legislate and the State Legislatures have no authority to
make any law in respect of the Entries contained in List I.
Secondly, so far as the Concurrent List is concerned, both
Parliament and the State Legislatures are entitled to
legislate in regard to any of the Entries appearing therein,
but that is subject to the condition laid down by Article
254(1) discussed above. Thirdly, so far as the matters in
List II, i.e. the State List are concerned, the State
Legislatures alone are competent to legislate on them and
only under certain conditions Parliament can do so. It is,
therefore, obvious that in such matters repugnancy may
result from the following circumstances:
1. Where the provisions of a Central Act and a State Act in
the Concurrent List are fully inconsistent and are
absolutely irreconcilable, the Central Act will prevail and
the State Act will become void in view of the repugnancy.
2. Where however a law passed by the State comes into
collision with a law passed by Parliament on an Entry in
the Concurrent List, the State Act shall prevail to the extent
of the repugnancy and the provisions of the Central Act
would become void provided the State Act has been
passed in accordance with clause (2) of Article 254.
3. Where a law passed by the State Legislature while
being substantially within the scope of the entries in the
State List entrenches upon any of the Entries in the Central
List the constitutionality of the law may be upheld by
invoking the doctrine of pith and substance if on an
analysis of the provisions of the Act it appears that by and
large the law falls within the four corners of the State List
and entrenchment, if any, is purely incidental or
inconsequential.
4. Where, however, a law made by the State Legislature on
a subject covered by the Concurrent List is inconsistent
with and repugnant to a previous law made by Parliament,
then such a law can be protected by obtaining the assent
- 41 - W.P.(C) Nos. 5423/16 & 5149/10
of the President under Article 254(2) of the Constitution.
The result of obtaining the assent of the President would
be that so far as the State Act is concerned, it will prevail
in the State and overrule the provisions of the Central Act
in their applicability to the State only. Such a state of
affairs will exist only until Parliament may at any time
make a law adding to, or amending, varying or repealing
the law made by the State Legislature under the proviso
to Article 254.
So far as the present State Act is concerned we are called
upon to consider the various shades of the constitutional
validity of the same under Article 254(2) of
the Constitution.
24. It is well settled that the presumption is always in
favour of the constitutionality of a statute and the onus lies
on the person assailing the Act to prove that it is
unconstitutional. Prima facie, there does not appear to us
to be any inconsistency between the State Act and the
Central Acts. Before any repugnancy can arise, the
following conditions must be satisfied:
1. That there is a clear and direct inconsistency between
the Central Act and the State Act.
2. That such an inconsistency is absolutely irreconcilable.
3. That the inconsistency between the provisions of the two
Acts is of such nature as to bring the two Acts into direct
collision with each other and a situation is reached where
it is impossible to obey the one without disobeying the
other.
25. In Colin Howard's Australian Federal Constitutional
Law, 2nd Edn. the author while describing the nature of
inconsistency between the two enactments observed as
follows:
"An obvious inconsistency arises when the two enactments
produce different legal results when applied to the same
facts."
78. Further, the similar view has been taken by the Hon'ble
Apex Court in the case of Govt. of A.P. v. J.B. Educational
- 42 - W.P.(C) Nos. 5423/16 & 5149/10
Society, (2005) 3 SCC 212 wherein, at paragraph-12, it has
been held as under:--
"12. Thus, the question of repugnancy between the
parliamentary legislation and the State legislation can
arise in two ways. First, where the legislations, though
enacted with respect to matters in their allotted sphere,
overlap and conflict. Second, where the two legislations
are with respect to matters in the Concurrent List and
there is a conflict. In both the situations, parliamentary
legislation will predominate, in the first, by virtue of the
non obstante clause in Article 246(1), in the second, by
reason of Article 254(1). Clause (2) of Article 254 deals
with a situation where the State legislation having been
reserved and having obtained President's assent, prevails
in that State; this again is subject to the proviso that
Parliament can again bring a legislation to override even
such State legislation."
79. Further, the Constitution Bench of the Hon'ble Apex
Court has reiterated the same view in the Judgment rendered
in the case of State of Kerala v. Mar Appraem Kuri Co.
Ltd., (2012) 7 SCC 106, wherein, it has been held at
paragraph-65 which reads as under:--
"65. Applying the above tests to the facts of the present
case, on the enactment of the (Central) Chit Funds Act,
1982 on 19-8-1982, intending to occupy the entire field of
chits under Entry 7 of List III, the State Legislature was
denuded of its power to enact the Kerala Finance Act 7 of
2002. However, as held in numerous decisions of this
Court, a law enacted by the State Legislature on a topic in
the Concurrent List which is inconsistent with and
repugnant to the law made by Parliament can be protected
by obtaining the assent of the President under Article
254(2) and that the said assent would enable the State
- 43 - W.P.(C) Nos. 5423/16 & 5149/10
law to prevail in the State and override the provisions of
the Central Act in its applicability to that State only."
80. Likewise, the Hon'ble Apex Court in the case of K.A.
Annamma v. Secretary, Cochin Coop. Hospital Society
Ltd., (2018) 2 SCC 729 at paragraph-60 to 62, it has held as
under: --
"60. The law in relation to Article 254 of
the Constitution and how it is applied in a particular case
is fairly well settled by the series of decisions of this Court.
This Article is attracted in cases where the law is enacted
by Parliament and the State Legislature on the same
subject, which falls in List III - Concurrent List.
61. In such a situation arising in any case, if any
inconsistency or/and repugnancy is noticed between the
provisions of the Central and the State Act, which has
resulted in their direct head on collusion with each other,
which made it impossible to reconcile both the provisions to
remain in operation inasmuch as if one provision is
obeyed, the other would be disobeyed, the State Act, if it
has received the assent of the President will prevail over
the Central Act in the State concerned by virtue
of Article 254(2) of the Constitution.
62. A fortiori, in such a situation, if the State Act has
received the assent of the Governor, then the Central Act
would prevail over the State Act by virtue
of Article 254(1) of the Constitution."
81. The law is well settled regarding Article 254 of the
Constitution of India and is very specific that in case law is
enacted by the parliament and the State Legislature on the
same subject, which falls in List III, concurrent list, in such a
situation arising in any inconsistency and/or repugnancy
between the provisions of the Central and the State Act, if the
- 44 - W.P.(C) Nos. 5423/16 & 5149/10
State Act has received the assent of the President, will prevail
upon the Central Act in the concerned State by virtue of
Article 254(2) of the Constitution of India. But if the State Act
has received the assent of the Governor, then the Central Act
would prevail over the State by virtue of Article 254(1) of the
Constitution of India.
82. This Court on the basis of aforesaid constitutional
mandate having been considered by the Hon'ble Apex Court
in the cases referred herein above and after going through the
notification dated 28.04.1947, has found that the said
notification is with the assent of the Governor but the Indian
Forest Act, 1927 is being the Central legislation, hence, the
Indian Forest Act, 1927 will prevail upon the said notification.
83. Therefore, the contention which has been raised on
behalf of petitioner that the private forest will also come into
in the fold of Indian Forest Act, 1927 so as to maintain the
enquiry to be conducted in view of provision of Section 29(3)
of the Act, 1927, having no substance.
84. This Court, after having answered the aforesaid issues
and coming to the applicability of provision of Section 29(3) of
the Indian Forest Act, 1927, has found that it is evident that
from the proviso to sub-section (3) to Section 29 of the Indian
Forest Act, 1927 that the power has been conferred to
conduct enquiry by the revenue authority.
- 45 - W.P.(C) Nos. 5423/16 & 5149/10
85. Here, another question would be that whether the
private forest is to be brought under the fold of the proviso to
sub-section (3) to Section 29.
86. The Indian Forest Act, 1927 is very specific which is for
the purpose of maintaining the forest by giving a declaration
to that effect and protected forest is also to be declared but
for that an inquiry is to be there followed by notification in
view of provision of Section 29(3) of the Act, 1927.
87. Here, the fact which is not in dispute is that in view of
the declaratory suit filed in between the parties i.e., title
suits, bearing Title Suit Nos.39 of 1956 and 13 of 1957,
which has been decreed and, thereafter, the aforesaid
judgment and decree was also confirmed by the Appellate
Court in Title Appeal Nos.13 and 14 of 1962. Therefore, the
land in question will be said to be settled in the year 1937 in
favour of the private parties and declaration to the effect of
inter se right has been decided by the competent court of civil
jurisdiction. As such, the State cannot say that the said land
is of the State or of the ex-landlord or ex-king [raja] in the
pre-independent period.
88. Otherwise also even accepting that the land was of the
ex-landlord but the question would be that if the land was in
possession of the private parties since the year 1937 based
upon that a lease deed was entered in between the Bengal
- 46 - W.P.(C) Nos. 5423/16 & 5149/10
Coal Company for the purpose of carrying out mining
operation even then in view of the rider of the specific date
i.e., 01.01.1946, the Collector cannot conduct enquiry for
annulment of transfer.
89. The aforesaid issue has been decided by this Court with
respect to applicability of the section 4(h) of the Bihar Land
Reforms Act, 1950 in the case of State of Jharkhand & Ors
vs. Izhar Hussain [LPA No. 786 of 2018], wherefrom it
would be evident that provision of Section 4(h) has been held
not applicable if the settlement has been shown to be pre
01.01.1946.
90. For ready reference, relevant paragraph is quoted as
under:
16. .............
-----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
- 47 - W.P.(C) Nos. 5423/16 & 5149/10
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.
18. Admitted fact herein is that the transfer has been
- 48 - W.P.(C) Nos. 5423/16 & 5149/10
made much prior to 1st January, 1946 i.e. sometimes in 20
the year 1933 by way of Auction Settlement being Auction
Certificate Case No. 191 of 1933 and, therefore, in the
facts of this case the provision of Section 4 (h) of the Act,
1950 should not have been initiated by the Circle Officer
taking into consideration the settlement of the land in the
year 1933 which exclude the land in question from the
purview of Section 4(h) of the Act, 1950.
19. Further, even accepting the submission to the effect
that the notification dated 24.05.1958 issued by the forest
department holding the land as forest land and the fact
that there was auction settlement in the year 1933, the
question remains that under what authority and
jurisdiction notification was issued in the year 1958
without resorting to any provision of law or without getting
any declaration invalidating of the proceeding being
Auction Certificate Case No. 191 of 1933.---------
----------
The question would be that in absence of any power
conferred by Statute upon any of the revenue authority can
Jamabandi be cancelled. The answer of this question
would be in negative as statute confers power upon the
authority and the authority can purportedly exercise the
power conferred upon it under the statutory power and if
any decision is taken in absence of any provision the same
would be said to be nullity in the eye of law when found to
be without jurisdiction.
It is further settled that long running Jamabandi
cannot be cancelled, save and except by filing a suit before
the competent Court of Civil Jurisdiction-------.
20. This Court, after having gone into the details as above
as also travelling across the impugned order wherefrom it
is evident that the learned Single Judge has relied upon
the judgment in The State of Jharkhand & Ors vs.
Chanchala Devi passed in L.P.A. No. 142 of 2010
with L.P.A. No. 307 of 2009, wherein it has been held
by the Co-ordinate Bench of this Court that if the State
- 49 - W.P.(C) Nos. 5423/16 & 5149/10
Government is claiming ownership upon the property in
question which is in possession of the tenant/raiyat and
his/her predecessors-in-title since 09.06.1942, Civil Suit is
the only remedy available with the State Government.
Further it transpires from the impugned order that the
learned Single Judge has also discussed about
applicability of Section 29 of the Indian Forest Act, 1927,
which confers power upon the State Government to issue
notification in the official Gazette for declaring the 24
provision of this Chapter applicable to any forest land or
waste-land which is not included in a reserved forest 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. Sub-Section (2) thereof further
provides that the forest-land and waste-land comprised in
any such notification, shall be called a "protected-forest".
Sub-section (3) thereof says that 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.
Therefore, Section 29 (1) explicitly provides that the
State Government may notify any forest land or waste 25
land as protected forest over which the Government has
proprietary rights, or to the whole or any part of the forest
produce of which the Government is entitled. The condition
precedent for issuing any notification under section 29 (1)
- 50 - W.P.(C) Nos. 5423/16 & 5149/10
is the inquiry be conducted under section 29 (3) regarding
the nature and extent of right of the Government and of the
private persons upon the forest land or the waste land.
25. We, on appreciation of the findings recorded by the
learned Single Judge and on the basis of discussions
made herein above, are of the view that there is no reason
to differ with the view/opinion of the learned Single Judge,
by coming to the conclusion that the order dated
09.09.2016 passed by the revenue authorities is illegal
and not sustainable in the eyes of law, as they have
exercised power conferred under section 4(h) of the Act,
1950 which as per the discussions made herein above has
been found to be not applicable in the facts and
circumstances of the case as the case of the writ petitioner
is that he is claiming title over the land in question on the
basis of settlement made prior to 1st January, 1946 and
further the additional Collector by way of order passed in
Misc. Case No. 56/2015-16 has already passed order on
17.03.2016 holding therein that the present raiyats i.e
Izhar Hussain and Akhtar Hussain are the recorded
raiyats of Register-II in Thoka (Lot) No. 1665 which is
absolutely correct and proper. But without questioning and
without reversal of that order, a fresh proceeding was
initiated under Section 4(h) of the Act, 1950 and further
long running Jamabandi cannot be cancelled, save and
except by instituting a litigation before the Civil Court of
competent jurisdiction. Hence, the order passed by the
learned Single Judge cannot be faulted with.
26. Accordingly, since the instant appeal lacks merit, is
dismissed.
91. It needs to refer herein that the view taken in the case of
State of Jharkhand & Ors vs. Izhar Hussain (supra) has
been affirmed by Hon'ble Apex Court in Special Leave to
Appeal (C) No.8108 of 2021 vide order dated 06.07.2021.
- 51 - W.P.(C) Nos. 5423/16 & 5149/10
92. The provision of Section 29(3) particularly its proviso
confers power upon the State to conduct enquiry even
accepting the same is the power to be exercised and based
upon that power the notification was issued on 23.09.1964
but there is no final fact-finding report while on the other
hand under the proviso it has been referred that the
subsisting right of the party will not be jeopardized.
93. This Court, in view thereof, is of the view that the word
‗subsisting right' will have paramount importance which
means the right which is available over the land in question
in the facts of the present case is to be exercised. Otherwise
also the State Government cannot be allowed to take the aid
of the notification said to be issued under Section 29(3) way
back on 23.09.1964 and even after lapse of 60 years there is
no output with respect to the enquiry.
94. But the State on the one hand is taking lethargic
approach even accepting the power under Section 29(3) is to
be exercised for the last 60 years while on the other hand in
the year 2016 i.e., after lapse of about 52 years, the
restrainment orders [impugned orders] have been passed
restraining the petitioner from mining operation. Such
conduct of the State cannot be said to be proper. Moreover,
as per the pleading made in the writ petition the land was
leased out by the private parties in favour of Bengal Coal
- 52 - W.P.(C) Nos. 5423/16 & 5149/10
Company and after coming into effect of Coal Nationalization
Act, 1973 all the lands where the mining operation was
carried out was vested with the Central Government and for
the aforesaid purpose the nodal company has been
constituted in the name and style of Coal India Limited and
depending upon the territory the subsidiary companies have
also been constituted one of it is Bharat Coking Coal Limited,
the petitioner herein.
95. The other question is that when the mining operation as
being carried out by virtue of Coal Nationalization Act, 1973,
then where is the question the State without determining and
without getting the report in view of provision of section 29(3)
of the Act, 1927 pass such restrainment orders.
96. This Court, in view of the aforesaid discussion, is of the
view that the issues, which have been framed is being
answered accordingly.
97. This Court, having answered the issues framed by this
Court, is of the view that it is the State authority which
without conducting the enquiry and coming to the conclusion
of fact finding based upon the provision of Section 29(3) of
the Indian Forest Act, 1927, passed the impugned orders
which requires interference by this Court.
98. Accordingly, the impugned orders of restrainment dated
25.08.2010; 17.08.2016 modified vide order dated
- 53 - W.P.(C) Nos. 5423/16 & 5149/10
03.09.2016 as also the orders dated 03.09.2016 whereby
show cause notices were issued upon the petitioner are
hereby quashed and set aside.
99. However, the State is at liberty to raise the issue of title,
if the State so wishes by ventilating the grievance before the
competent Court of civil jurisdiction.
100. Such liberty is being granted since the State has raised
the question of title/vesting of the land by virtue of the effect
of the Bihar Land Reforms Act, 1950.
101. Accordingly, both the writ petitions stand allowed.
102. Pending Interlocutory Application(s), if any, stand
disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Navneet Kumar, J.) (Navneet Kumar, J.)
Alankar/ A.F.R
- 54 - W.P.(C) Nos. 5423/16 & 5149/10
