R.K. Merathia, J.
1. In WP(C) No. 3362 of 2009, petitioners being the employees of Electro Steel Integrated Ltd. ( the Company for short) have prayed for quashing the entire proceedings initiated against them under Bihar Public Land Encroachment Act (BPLE Act for short) being B.P.L.E. Case No. 2 to 11 of 2009-2010, pending in the court of Collector cum Divisional Forest Officer, Bokaro Forest Division, including the orders passed therein restraining them and the Company from carrying on non-forestry work in the forest area in Plot Nos. 1159, 1120 and 1389.
WP(C) No. 2515 of 2009 has been filed by the petitioner company for restraining the respondents from interfering with the possession and enjoyment of the lands in question, purchased by the company, in any manner.
2. As common questions are involved in both the writ petitions, they were heard together and are being disposed of by this order.
3. Submissions on behalf of the petitioners are as follows:
(i) That the said proceedings under BPLE Act, being summary in nature, the disputed questions of right, title, interest and possession, cannot be decided, specially when the appeal arising out of suit, preferred by the Forest Department, involving similar questions, is pending.
That a suit being Title Suit No. 25 of 1996 was instituted in the Court of Sub Judge-II, Bokaro by the plaintiffs-Haripad Mahto, Kailashpati Mehta, Sumitra Bala Devi, sons and wife of late Raghunath Mehta of village Bhagaband against the Chief Secretary, Government of Bihar; the Secretary, Forest Department, Government of Bihar; the Deputy Commissioner, Bokaro; the Divisional Forest Officer, Dhanbad; and the Ranger, Chas Range Forest Department, Chas, Bokaro; for declaration of permanent occupancy raiyati right and confirmation of possession etc. of the plaintiffs in the schedule-A and B lands. Schedule-A consisted of 8.50 acres of land in plot No. 1159, 3.05 acres in plot No. 1389 5.13 acres in plot No. 1321, and 1.00 acre in plot No. 1120, in Bhagaband Mauza.
That the respondents-Forest Department contested the suit.
The following issues were framed:
(i) Is the suit maintainable in the present form ?
(ii) Is there any cause of action for the suit?
(iii) Is the suit barred by the principle of waiver, estoppel and acquiescence ?
(iv) Is the deed of settlement of the suit land in accordance with law ?
(v) Is the suit land reclaimed into paddy producing khet by the plaintiffs?
(vi) Is the entire area of each suit plot acquired by the Bihar Forest ?
(vii) Is the plaintiff entitled for the reliefs prayed in the suit?
(viii) Is the plaintiff entitled to any other relief or reliefs.
That issue Nos. 4 and 5 were decided in affirmative.
Regarding issue No. 6, it was inter alia held that claims of the defendants that the suit lands have been declared to be the protected forests is mere myth and it remains unproved as yet, and that the claim of the raiyats due to non-enquiry under Section 29(3) of the Indian Forest Act, 1927 has not been extinguished as yet. It was further held that the plaintiffs are in peaceful uninterrupted continuous possession of the suit land since 1940-42 when the Bihar Private Forest Act was not in existence and therefore the plaintiff acquired indefeasible right much less raiyati right over the lands; by their continuous possession of 12/30 years; and that the plaintiffs have become occupancy right of the suit land under the provisions of CNT Act, who cannot be ejected unless and until a decree of ejectment is executed as provided under Section 22 of the CNT Act.
That against such judgment and decree an appeal being Title Appeal No. 33 of 2007 was preferred in the court of District Judge, Bokaro, by the Divisional Forest Officer, Dhanbad, and the Range Officer, Chas and the same is pending. That the initiation of the impugned proceedings is illegal, arbitrary and malafide.
Reliance was placed on : AIR 1982 SC 1081 Government of Andhra Pradesh v. Thummala Krishna Rao; AIR 2009 Jhar. 332 Navchetan Sahkari Grih Nirman Samiti Ltd. v. State of Jharkhand; 2009 (1) JLJR 126 Haranganj Grih Nirman Sahyog Samiti v. State of Jharkhand; 2004 (3) JCR 89 (Jhr) Kamal Kumar Singhania v. State of Jharkhand; : 2003 (2) JCR 701 (Jhr) Manohar Lal Jain v. State of Jhakhand; 2000 (1) PLJR 209 Nagendra Mistry v. State of Bihar and 2009 (2) JLJR 393 Bharat Singh v. The State of Jharkhand.
(ii) That after the notification dated 24.5.1958 was issued under Section 29 of the Indian Forest Act, 1972, it was necessary to issue notification after holding enquiry and survey, as contemplated under Section 29 (3) of the Act extinguishing the rights of the persons concerned, but no such notification was issued and therefore the said notification dated 24.5.1958 cannot be relied by the respondents for claiming that the lands in question are forest land and for initiating the impugned proceedings. That when the Forest Department could not produce notification under Section 29(3) they are claiming that the lands have been declared 'Private Forest'. That even from the notification declaring private forest it will appear that the extent of plots declared as private forest is not mentioned and moreover plot Nos. 1389 and 1321 are not there at all.
That the raiyati-agricultural lands in question were purchased by the Company under registered sale deeds as there was delay in acquisition of land through Government. The right, title and interest of the vendors of the Company and their predecessors did not vest in the Government and were not extinguished by the process of law. : AIR 1966 SC 1847 State of Bihar v. Lt. Col. K.S.R. Swami was relied.
(iii) The entire area in question has been surveyed in the year 1973-74 by Survey of India using the latest techniques and from such survey map, it will appear that no part of the area, over which the construction work of the Company is going on, contains forest area or private protected forest.
(iv) The principles of sustainable development should be kept in mind. Establishing the Industry and preservation of Forest, both are important. NEERI (National Environment Engineering Research Institute), a premier and leading environmental study Institute of India, after conducting extensive environment study for radius of 10 Kilometers of plant area, has given approval. The Industry will earn revenue and will generate lot of direct and indirect employment. The Company has planned development of a modern township and has undertaken 1,50,000 trees plantation programme.
4. The submission of the State-respondent are as follows:
(i) That the Company was to establish its integrated steel plant in Chandankyari Block for which permission was given, but it has not taken permission to establish it in Bhagaband Village of Chas Block, from any competent authority, including the Government of India, Ministry of Environment of Forest under Section 2 of Forest Conservation Act, 1980. That the Company and its employees started non forestry work over the protected forest of Bhagaband Mauza.
(ii) That the lands in question have been notified and demarcated as protected forest land under Section 29 of the Indian Forest Act, 1927, vide Notification No. C/F-17014/58-1429- R dated 24.5.1958. Forest Settlement Officer was appointed who after verifying and considering all the relevant documents produced before him, from all the raiyat interested, passed necessary order/enquiry report demarcating different plots as protected forest. A detailed cadastral map was prepared on that basis, in which different plots of Bhagaband Mauza have been demarcated. The areas of demarcated plots are 51.34 acre in plot No. 1120, 51.62 acres in plot No. 1159, 21.64 acre in plot No. 1389, and 8.78 acre in plot No. 1321. On the said cadastral map, all the three concerned officials i.e. Forest Settlement Officer, Divisional Forest Officer and Superintendence of Surveyors put their signatures. Annexures-B and C to the counter affidavit of WPS No. 3362 of 2009 were referred.
That thereafter, notification under Section 30 of the Indian Forest Act has been promulgated, and thus all the provisions under Section 29 for declaring the area as notified demarcated forest land has been completed. That in the survey khatiyan, the status and nature of the lands in question is mentioned as 'Gairabad Malik- Ismal Malik' and 'Jangal Jhari'. That the Company did not acquire right over the plots in question by registered sale deeds.
(iii) In view of 1994 (2) PLJR 731 Bhuneshwar Pandit v. The State of Bihar writ court should not enter into disputed questions of fact.
(iv) Paragraphs 39, 47, 48, 52 (2) and 52(3) of the judgment reported in : (2009) 5 SCC 373 Nature Lovers Movement v. State of Kerala was relied to contend that the Forest Conservation Act, 1980 will apply retrospectively; and that prior approval of Central Government is necessary for carrying on non-forestry work in forest area, and that this Act will apply to all forests, irrespective of nature of ownership or classification thereof. Paragraph 4 of the judgment reported in : (1997) 2 SCC 267 T.N. Godavarman Thirumulkpad v. Union of India and Ors. was also relied.
5. Reply on behalf of the petitioner are as follows:
That the said Annexure-B and C shows that such proceedings was taken prior to issuance of the Notification dated 24.5.1958, under Section 29 of the Indian Forest Act, 1927, and that the Notification under Section 30 is only for reserving trees. Thus respondents have failed to produce any Notification issued under Section 29(3) of the Act, and therefore, they cannot claim that the lands in question is protected forest. The respondents also did not comply with the order dated 2.12.2009 passed in the WP(C) No. 3362 of 2009. However from the following chart annexed by the respondents themselves it will appear that part of the lands in question are involved in the Suit - Appeal.Mauza Plot No. Total area Area notified Area decreed Encroach ment Area recorded Permission grantedas projected to Vendor done by as Jungle Jhari by Centralforest vide T/S petitioner Survey Khatiyan Government ofIndiaUnder Section 2of ForestConservation Act 1 2 3 4 5 6 7 8 Bhaga 1120 89.16 51.34 1.00 16.23 89.16 Not takenbandh 1159 99.84 51.62 8.50 51.62 99.84 Not taken1389 66.98 21.64 3.05 21.64 66.98 Not taken Total 255.98 124.60 12.55 89.49 255.98
6. From the aforesaid submission of the parties, it will appear that several disputed questions of facts about right, title and interest are involved in these writ petitions.
In view of the judgments relied by the parties as noticed above, such disputed questions can neither be decided in these writ petitions, nor in the summary proceedings in question under BPLE Act. Moreover, the appeal-T.A. No. 33 of 2007, arising out of the suit, involving the said questions between the predecessors in interest of the petitioner- company and the respondents is pending. However, it is observed that the said appeal should be disposed of expeditiously.
7. In the result, the BPLE proceedings in question are quashed, with liberty to the parties to take recourse to and/ or pursue appropriate proceedings before the competent authority/courts of law. But status quo as on today shall be maintained, for one month from today, to enable the parties to obtain orders from competent authority/court.
However, it is made clear that this order will not prejudice the respective cases of the parties in other proceedings/suit/appeal etc.
With these observations, liberty and directions, these writ petitions are disposed of. However, no costs.