Full Judgment
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1048 of 2013 ----------- Kaushal Nayak @ Kushal Nayak, Son of late Gobardhan Nayak, Resident of Village-Rapacha, P.O. and P.S. Gamaria, District- Seraikella, Kharsawan. …..Petitioner Versus 1. The State of Jharkhand.
2. Forest Guard, Kalikapur, 394 Area Village-Rabcha, P.O. and P.S. Gamharia, District-Saraikella, Kharsawn. .Opposite Parties ----- Coram: HON’BLE MR JUSTICE RONGON MUKHOPADHYAY ----- For the Petitioner : Mr.R.C.P. Sah, Advocate For the Opposite Parties : Mr. Rajesh Shankar, G.A. ----- C.A.V. On 19.02.2016 Pronounced on 9/03/2016 In this application, the petitioner has prayed for quashing the entire criminal proceeding in connection with G.O. Case No. 181 of 2012 including the order dated 30.11.2012, passed by the learned Judicial Magistrate, 1st class, Saraikella, Kharsawan, whereby and whereunder cognizance has been taken for the offences punishable under Section 33 of the Indian Forest Act and Section 2(a) of Forest Conservation Act.
2. The prosecution report suggests that the petitioner was found to have been encroached an area of 25,000 sq. ft of forest land and he was making wall for constructing a house without there being any order from the competent authority.
3. Pursuant to submission of the offence report, cognizance was taken by the learned Judicial Magistrate, 1st class, Saraikella vide order dated 30.11.2012 for the offence punishable under section 33 of the Indian Forest Act and Section 2(a) of Forest Conservation Act.
4. Heard Mr. R.C.P. Sah, learned counsel for the petitioner and Mr. Rajesh Shankar, learned G.A. appearing for the State.
5. The main plank of argument of learned counsel for the petitioner is that a notification was issued on 14.11.1954 declaring the area as mentioned in the notification as a protected forest.
6. It has been submitted that in terms of Section 30(b) of the Indian Forest Act, the protected forest has ceased to be in existence and in such circumstances, no offence under the Forest Act can be fastened upon the petitioner.
7. Mr. Rajesh Shankar, learned Government Advocate, has submitted that Section 29 of the Indian Forest Act relates to a -2- protected forest and Section 30 deals with the power to issue notification reserving trees etc. It has been submitted that once a forest land or waste land is declared as a protected forest under section 29 of the Act, the character of the forest continues to remain as that of a protected forest until and unless the same is de-notified by the State Government. It has been submitted that so far as Sections 30 (a) and 30(c) are concerned, the Government can issue notification under the said sub sections and when it is done, the prohibition continues to remain perpetually. Submission has been advanced that Section 30 (b) of the Indian Forest Act does give power to the State Government to close certain potion of protected forest area for specific performance and which shall not be for a period exceeding 30 years. It has been submitted that till date neither the State of Bihar nor the State of Jharkhand have issued any notification under Section 30(b) of the Indian Forest Act and in such circumstances, the question of regaining the character of a non protected forest as it was prior to issuance of notification is not sustainable. In order to deal with the rival contentions, it would be necessary to refer to Sections 29 and 30 of the Indian Forest Act and which forms the backbone of the contentions of learned counsel for the parties.
"9. 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 forest-produce of which the Government is entitled. (2) The forest-land and waste-lands 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. -3- 30. Power to issue notification reserving trees, etc.-The State Government may, by notification in the Official Gazette,- (a) declare any trees or class of trees in a protected forest to be reserved from a date fixed by the notification; (b) declare that any portion of such forest specified in the notification shall be closed for such term, not exceeding thirty years, as the State Government thinks fit, and that the rights of private persons, if any, over such portion shall be suspended during such terms, provided that the remainder of such forest be sufficient, and in a locality reasonably convenient, for the due exercise of the right suspended in the portion so closed; or (c) prohibit, from a date fixed as aforesaid, the quarrying of stone, or the burning of lime or charcoal, or the collection or subjection to any manufacturing process, or removal of, any forest-produce in any such forest, and the breaking up or clearing for cultivation, for building, for herding cattle or for any other purpose, of any land in any such forest". Section 29 clearly depicts that a forest land and waste land can be comprised of in any notification issued under sub section (1) and the same shall be declared as a protected forest. Section 30 (a) deals with reservation of any trees or class of trees in a protected forest from a date fixed by the notification. Similarly, sub section (c) of Section 30 prohibits various processes and/or removal of any forest produce as also of breaking up or clearing for cultivation for building of any land in such forest. Section 30(b) is by way of an emergency provision as the rights of the private persons are suspended for a period not exceeding 30 years. None of the notifications issued under Section 29, Section 30 (a) and Section 30 (c) of Indian Forest Act denotes a period for its existence. It can, therefore, be culled from a reading of Sections 29 and 30 of the Act that until and unless the said provisions are de-notified, their character or prohibition intended therein continues to operate perpetually. However, so far as section 30(b) is concerned, since the same is with respect to preventing the rights of private parties, any portion of the forest specified in the notification is enforced for a maximum period of 30 years. As has been submitted by the learned Government Advocate, there has never been any notification under section 30 (b) of the Act either in the State of Bihar or in the State of Jharkhand in order to suspend the rights of private person over such portion of forest land. Such circumstances, would therefore lead to a conclusion that merely because a notification has been issued as contended by the learned counsel for the petitioner, the same cannot and would not continue for a period of 30 years but beyond the same until and unless the same is de-notified by the State Government. The contention of learned counsel for the petitioner is, therefore, wholly misconceived -4- and is thus negated. Coming back to the factual position of the present case, the allegation against the petitioner is of constructing a house within the forest premises. Whether the portion of the forest land where the illegal activity was being carried out by the petitioner was notified under section 30 (a) or 30 (c) cannot be dealt with in this application in absence of the notification itself. It is for the petitioner to prove that the area in which he was constructing house was not reserved or was prohibited which can be raised before the learned trial court as in a proceeding under section 482 Cr.P.C., this Court cannot make a roving enquiry or gather the details to come to a conclusion. In view of the aforesaid facts, there being no merit in this application, the same is hereby dismissed with a liberty to the petitioner to raise all the points before the learned court below at the appropriate stage. (Rongon Mukhopadhyay,J) Rakesh/