Jharkhand High Court
M/S. Bharat Coking Coal Limited vs The State Of Jharkhand on 14 January, 2025
Bench: Sujit Narayan Prasad, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 263 of 2006
----
M/s. Bharat Coking Coal Limited, a Government Company
within the meaning of Section 617 of the Companies Act,
having its registered office at Koyla Bhawan, P.O. Koyla
Nagar, P.S. Saraidhella, District-Dhanbad, through Sri
Surinderjit Singh Malhi, son of Amar Singh Malhi, General
Manager, Kusunda Area, M/s BCCL, P.O. Kusunda, P.S.
Kenduadih, District-Dhanbad.
… … … Petitioner
-Versus-
1. The State of Jharkhand.
2.Divisional Forest Officer, Dhanbad Forest Division,
Dhanbad, P.O., P.S. and District Dhanbad.
3. Beat Officer, Rajganj, Dhanbad Forest Division, Dhanbad,
District-Dhanbad.
………Respondents
——-
CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON’BLE MR. JUSTICE NAVNEET KUMAR
——
For the Petitioner : Mr. Anoop Kr. Mehta, Advocate
Mr. Manish Kumar, Advocate
Mr. Pratyush, Advocate
For the Respondents : Mr. Ankit Kumar, AC to GP-VI
——–
CAV on 02/12/2024 Pronounced on 14/01/2025
Per Sujit Narayan Prasad, J:
Prayer:
1. The instant writ petition filed under Article 226 of the
Constitution of India, has been filed for the following reliefs:
(i) For issuance of an appropriate writ/order/direction
upon the Respondents, specially the Respondents No.2
and 3 for restraining them from interfering in any
manner with the coal mining activities being carried out
by the petitioner on Plot Nos. 2420 and 2712 of Khata
No.118 of Mouza-Bowakalan @ Barki Bowa in the-1- W.P.(C) No. 263 of 2006
district of Dhanbad which stood vested in the petitioner
company on coming into force of the Coal Mines
(Nationalisation) Act, 1973 with effect from 1/5/1973,AND
(ii). For issuance of further writ/order/direction upon
the Respondents restraining them from creating any
disturbance in the on-going mining work of East
Busseriya colliery on the plea that the coal mining
activities are being carried on over forest lands.
Brief facts of the case:
2. The petitioner is holder of coal mining lease and engaged
in coal mining activities. Further the East Busseriya colliery
is situated at Mouza-Bowakalan @ Barki Bowa in the district
of Dhanbad.
3. It has been stated that Plot No.2420 of Khata No. 118
has been recorded as Gair Abad Malik land in the Cadestral
Survey Record of Rights. The said lands have been classified
as Puratan Patit lands and the total area of the said Plot is
17.66 acres. Similarly, Plot No.2712 of Khata No.118 is also
recorded as Gair Abad Malik land and the total area is
17.81acres. Accordingly, the total area falling under two these
plots is 35.47 acres.
4. The aforesaid lands being Plot No.2420 and 2712 stands
recorded under Khewat No.2 held by Rani Subhadra Kumari,
the superior landlord.
5. The superior landlord, Rani Subhadra Kumari by a
permanent lease being Mokrari Patta Deed No.2535 dated
10/11/1924 granted permanent lease for surface right as
well as Zamindari (Intermediary) right i.e. right to collect rent
-2- W.P.(C) No. 263 of 2006
also for a period of 999 years in respect of 881 Bighas in
favour of one Prabhulal Pranjivan, the Ex-colliery owner.
6. In the year 1933, Raja Shiva Prasad Singh of Jharia Raj
Estate who is the successor/legal heir of the said Rani
Subhadra Kumari Devi, by a registered Deed No.3736 dated
14/11/1933 granted coal mining right/lease for a period of
999 years in respect of 1050 Bighas of coal land in favour of
Maya Shanker Bhagwanji, son of Bhagwanji and Jatashanker
Dossa.
7. Amongst the lessees of Deed No.2535 dated 10/11/1924
and Deed No. 3736 dated 14/11/1933, a partition of the said
1050 Bighas of land was carried out vide registered Partition
Deed No.3970 dated 23/9/1937. As per the said Deed, 300
Bighas out of the said 1050 Bighas of land was allotted to one
Mukta Bait, wife of late Maya Shanker Bhagwanji and
Prabhulal Pranjivan son of Prajjivan Harishanker and
remining 750 Bighas were allotted to Jatashankar Dossa, son
of Late Dossa and others.
8. By virtue of subsequent partition through various
partition deeds as well as sale Deeds executed in favour of
Jatashanker Dossa, he became the absolute owner in respect
of 750 Bighas of coal land inclusive of related surface lands.
9. The said Jatashanker Dossa vide registered Indenture
Deed No. 9053 dated 13/9/1943 sold and transferred the
said 750 Bighas land covered by Deed of the year 1924 and
Deed of the year 1933 in favour of East Busseriya Colliery
Company Limited. The said East Busseriya colliery Company
Limited carried out coal mining business in the said 750
Bighas of land inclusive of lands falling under Plot No.2420
and 2712 referred to hereinabove.
-3- W.P.(C) No. 263 of 2006
10. The aforesaid coal mining operations included extraction
of coal from underground coal mines and establishing
Dhowras/staff quarters, Magazine house, inclines and other
infrastructures etc.
11. On coming into force of the Bihar Land Reforsms Act,
1950 the Intermediary interest of the Ex-Zamindari vested in
the State Government. However, in view of the provisions
contained in Sections 9 and 10 of the said Act, the interest of
mining lessee was saved from vesting and the same remained
with the mining lessee. Hence, Plot No. 2420 and 2712 apart
from other plots falling under 750 Bighas of lands were saved
from vesting.
12. The Ex-colliery owner carried out underground coal
mining operations in respect to Plot No.2420 and 2712, a
portion of land has goafed and subsided due to de-pillaring
during the pre-nationalization period after getting permission
for de-pillaring by caving method from the Director General of
Mines Safety.
13. The aforesaid fact would be evident from the permission
granted by the Director General of Mines Safety contained in
his letter No.5365 dated 1/12/1967 addressed to M/s. East
Busseriya Colliery Company (P) Limited. A portion of Plot
No.2712 was also used as coal stock yard much prior to
nationalization and still as on date, the stock yard exists.
Besides above, a portion of the Plot No.2420 has also been
worked and quarried by Open cast method by the erstwhile
colliery owner during pre-nationalization period. Further, over
a portion of Plot No.2712 pucca road is passing which is used
for transportation of coal apart from other public use.
14. The entire surface land including the lands of related
Plot No.2420 and 2712 covering the said 750 Bighas of land
-4- W.P.(C) No. 263 of 2006
was in the possession of the erstwhile colliery owner at the
time of nationalization.
15. It is the case of the petitioner that the right, title and
interest in relation to the coal mine namely East Busseriya
colliery Company(R) Limited stood vested absolutely and free
from all encumbrances in view of the provisions contained in
Section-3 of the Coal Mines (Nationalization) Act, 1973. In
Schedule-1 appended to the Act 1973, East Busseriya colliery
Company(R) Limited figures at serial No.84.
16. In respect to the surface rights, the right of the
petitioner in respect to the said two plots have been duly
recognized by the then State of Bihar and the State of Bihar
accepted rent and issued rent receipts.
17. Subsequently, payment of land rent in respect to
aforesaid plot of lands were stopped in the light of an opinion
given by the Ministry of Coal, Government of India.
18. It is further case of the petitioner that out of the total
area of 35.47 acres of land of Plot Nos.2420 and 2712, land
measuring 28.12 acres have been recorded in the Revisional
Survey khatiyan(not final) in favour of M/s. Bharat Coking
Coal Limited. Remaining portion of the said land has been
recorded in the name of Government of Bihar with remakrs
‘Awaidh Dakhal’ by certain individuals while 0.56 acres out of
the balance has been recorded as Rasta meant for passage for
general public for transportation. In the remarks column of
the R.S. Khatiyan (not final), there is no mention of any
forest/jungle-jhari etc. against these lands. On the contrary,
there is mention of Dhowras/Goaf/House/Football ground
etc.
19. The mining operations have been carried out by the
petitioner Coal Company around and beneath the plots
-5- W.P.(C) No. 263 of 2006
peacefully and without any hindrance from the Forest
Department even after the nationalization until December,
2005. Even in the year 2001, permission has been granted
under the Coal Mines Regulation, 1957 in favour of the
Agent, East Busseriya colliery to work different coal seams by
mechanized open cast method located in and around the
aforesaid two plots of lands as would be evident from the
letter contained in Memo No.2117-19 dated 7/9/2001 of the
Director Mines Safety, Dhanbad, Region I addressed to the
Agent East Busseriya colliery.
20. It has further been stated that working by mechanized
Open cast method was allowed by the Director General of
Mines Safety, Dhanbad again in the year 2005 vide letter
dated 25/2/2005 in respect to the lands in question
alongwith others being Plot Nos. 2420 and 2712. In the light
of the permission granted, the petitioner has carried out coal
mining operations.
21. The petitioner due to shortage of mining machineries
has been engaging contractors by entering into contracts for
hiring of Heavy Earth Moving Machineries (H.E.M.M.). Under
the said contract, the petitioner Company takes on hire the
machineries for carrying out mining operations for removal of
over burden and extraction of coal.
22. It is the case of the petitioner that, the representative of
Dhansar Engineering Company (P) Limited vide his letter
dated 29/12/2005 addressed to the petitioner has informed
that the entire coal mining work being carried in East
Busseriya colliery has been stopped on the basis of oral
directions issued by the Forest Department on and from
27/12/2005 without assigning any reason or issuing any
notice in writing to the petitioner.
-6- W.P.(C) No. 263 of 2006
23. Consequently, the officials of the petitioner Company
have met the Respondent No.2 personally and appraised him
of the entire aforesaid facts including the fact that coal
mining operations have been carried out on the lands in
question prior to nationalization and even after
nationalization without any hindrance whatsoever from the
Forest Department on the basis of the permission granted by
the D.G.M.S.
24. The respondents are not at all prepared to see any of the
documents being relied upon by the petitioner and are
adamant in closing down the entire mining operations being
carried out in Plot Nos.2420, 2712 of Khata No. 118 of
Mouza-Bowalkalan @ Barki Bowa being Revenue P.S.No.228,
district-Dhanbad and have also threatened the petitioner and
their representatives for launching criminal prosecution
against them.
25. It is the case of the petitioner that on account of the
aforesaid act on the part of the Respondents, more than 700
workers who are deployed in East Busseriya colliery are being
affected as working of the coal mine has been paralyzed on
account of the interference on the part of the Respondents
and due to the inaction on the part of the Respondents No.2
and 3, entire coal mining activities has come to a stand-still
causing loss of revenue apart from royalty to the State
Government.
26. Hence the instant writ has been filed.
Submission on behalf of petitioner-BCCL:
27. Learned counsel for the petitioner -BCCL has assailed
the said action of the respondents-authorities, by taking
following grounds:
-7- W.P.(C) No. 263 of 2006
I. It has been submitted that the respondent on the basis
of verbal orders cannot stop the coal mining activities
being carried out by the petitioner or its agents over
said plot in the view of the fact that petitioners carrying
out the coal mining activities over the plot in question
prior to nationalization of the coal mines through the
Ex-colliery owner.
II. It has further been submitted that the said land was
recorded in the Cedestral Survey Records of Rights as
Puratan Patit in the classification column and in the
possession of the mining lessee namely the Ex-colliery
owner, the same cannot be declared as a forest land in
terms of Section 29 of the Indian Forest Act.
III. Further, the coal mining lease held by Ex-Colliery
owner were saved from vesting under the provisions of
section 9 and 10 of the Bihar Land Reforms Act, 1950,
cannot be declared to be a forest land without
compliance of provision of Section 29 of the Indian
Forest Act.
IV.Further, the respondents cannot restrain the petitioner
from carrying out coal mining activities without even
issuing a notice or passing an order to the effect in
writing.
V. In view of the arbitrary and whimsical action on the part
of the the Respondents, more than 700 workers who
are deployed in East Busseriya colliery are being
affected as working of the coal mine has been paralyzed
on account of the interference on the part of the
Respondents and due to the inaction on the part of the
Respondents No.2 and 3, entire coal mining activities-8- W.P.(C) No. 263 of 2006
has come to a stand-still causing loss of revenue apart
from royalty to the State Government.
VI.Submission has been made that from the aforesaid
factual aspect, it is evident that the entire said land
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.
VII. 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, only four trees were
found which clearly reveals that the mining operation
over the said Mauja is being carried out since long.
VIII. 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 2005 the
petitioner-BCCL has been restrained by the
respondents from carrying out the mining and other
activities over said plot.
IX. Being aggrieved, the petitioner approached this Court
by filing the instant writ petition being WRIT
PETITIONER© No.263 of 2006 in which vide order
dated 25.01.2006 interim order of stay was passed by
this Court.
X. The ground has been taken in assailing such decision of
the State authority of the forest department that the
verbal order passed by the respondent 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-9- W.P.(C) No. 263 of 2006
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.
XI. It has been contended that the notification under the
proviso to Section 29(3) of the Forest Act, 1927 is of
year1968, 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, the order
of restrainment, has been verbally ordered by the
respondent which is absolutely illegal and improper.
XII.The further ground has been taken that after coming
into effect of Coal Mines Nationalisation 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 Nationalisation
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.
28. Learned counsel for the petitioner, based upon the
aforesaid ground has submitted that the verbal order of
restrainment given by the respondent no.2 suffers from error
and are not sustainable in the eyes of law.
Submission on behalf of respondents-State: –
29. Learned counsel for the respondents-State has defended
the impugned orders by placing reliance upon the averments
made in the counter affidavit:
– 10 – W.P.(C) No. 263 of 2006
I. It has been stated that a total area of 85.39 acres in
Mouza Bawa Kalan has been notified as ‘Protected
Forest’ under Section 29 of the Indian Forest Act, 1927
vide notification dated 01.11.1968. As per provision
laid down under Section 29 of the Indian 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 14 of the
Bihar Private Forest Act, 1946.
III.It has been submitted by referring to Bihar Private
Forest Act, 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 of
the Indian Forest Act, 1927 on 01.11.1968.
IV. The contention has been raised that since by virtue of
Bihar Private Forest Act, 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 Act 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 01.11.1968 declaring the area to be protected
forest and in that view of the matter, the restrainment– 11 – W.P.(C) No. 263 of 2006
has been ordered since no permission was sought for
by the petitioner from the authority concerned
particularly from the Forest Department of to carry out
the mining operation in that area.
V. Learned counsel for the State has also 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, 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 restrainment was ordered, which suffers from no
error.
30. The learned State counsel, based upon the aforesaid
ground, has submitted that order since have been issued on
consideration of the ground as referred hereinabove, as such
the same are not fit to be interfered with.
Analysis:
31. We have heard learned counsel for the parties, gone
across the pleading made in the writ petition as also in the
counter affidavits and the relevant provisions of law.
32. 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?
– 12 – W.P.(C) No. 263 of 2006
(II) Whether by virtue of Bihar Private Forest Act since the
State 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 Nationalisation Act, 1973 in particular
area, then the authority concerned without determining
and without getting the absolute report in view of
provision of section 29(3) of the Act, 1927, can pass
such order of restrainment.
33. Since all the issues are interlinked, the same are being
taken up together.
34. 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.
35. The petitioner is holder of coal mining lease and engaged
in coal mining activities and the East Busseriya colliery is
situated at Mouza-Bowakalan @ Barki Bowa in the district of
Dhanbad. It has been stated that Plot No.2420 of Khata No.
118 has been recorded as Gair Abad Malik land in the
Cadestral Survey Record of Rights and, the total area falling
under two these plots is 35.47 acres.
36. It has been pleaded that the aforesaid lands being Plot
No.2420 and 2712 stands recorded under Khewat No.2 held
by Rani Subhadra Kumari, the superior landlord. The
superior landlord, Rani Subhadra Kumari by a permanent
– 13 – W.P.(C) No. 263 of 2006
lease being Mokrari Patta Deed No.2535 dated 10/11/1924
granted permanent lease for surface right as well as
Zamindari (Intermediary) right for a period of 999 years in
respect of 881 Bighas in favour of one Prabhulal Pranjivan,
the Ex-colliery owner.
37. In the year 1933, Raja Shiva Prasad Singh of Jharia Raj
Estate who is the successor/legal heir of the said Rani
Subhadra Kumari Devi, by a registered Deed No.3736 dated
14/11/1933 granted coal mining right/lease for a period of
999 years in respect of 1050 Bighas of coal land in favour of
Maya Shanker Bhagwanji, son of Bhagwanji and Jatashanker
Dossa.
38. Amongst the lessees of Deed No.2535 dated 10/11/1924
and Deed No. 3736 dated 14/11/1933, a partition of the said
1050 Bighas of land was carried out vide registered Partition
Deed No.3970 dated 23/9/1937. By virtue of subsequent
partition through various partition deeds as well as sale
Deeds executed in favour of Jatashanker Dossa, he became
the absolute owner in respect of 750 Bighas of coal land
inclusive of related surface lands.
39. It has been pleaded that the said Jatashanker Dossa
vide registered Indenture Deed No. 9053 dated 13/9/1943
sold and transferred the said 750 Bighas land in favour of
East Busseriya Colliery Company Limited. The said East
Busseriya colliery Company Limited carried out coal mining
business in the said 750 Bighas of land inclusive of lands
falling under Plot No.2420 and 2712 referred to hereinabove.
40. It is the case of the petitioner that on coming into force
of the Bihar Land Reforms Act, 1950 the Intermediary
interest of the Ex-Zamindari vested in the State Government.
However, in view of the provisions contained in Sections 9
– 14 – W.P.(C) No. 263 of 2006
and 10 of the said Act, the interest of mining lessee was
saved from vesting and the same remained with the mining
lessee. Hence, Plot No. 2420 and 2712 apart from other plots
falling under 750 Bighas of lands were saved from vesting.
41. A portion of Plot No.2712 was also used as coal stock
yard much prior to nationalization and still as on date, the
stock yard exists. Besides above, a portion of the Plot
No.2420 has also been worked and quarried by Open cast
method by the erstwhile colliery owner during pre-
nationalization period. The entire surface land including the
lands of related Plot No.2420 and 2712 covering the said 750
Bighas of land was in the possession of the erstwhile colliery
owner at the time of nationalization.
42. It is the case of the petitioner that the right, title and
interest in relation to the coal mine namely East Busseriya
colliery Company(R) Limited stood vested absolutely and free
from all encumbrances in view of the provisions contained in
Section-3 of the Coal Mines (Nationalisation) Act, 1973. In
Schedule-1 appended to the Act 1973, East Busseriya colliery
Company(R) Limited figures at serial No.84.
43. In respect to the surface rights, the right of the
petitioner in respect to the said two plots have been duly
recognized by the then State of Bihar and the State of Bihar
accepted rent and issued rent receipts. Subsequently,
payment of land rent in respect to aforesaid plot of lands were
stopped in the light of an opinion information given by the
Ministry of Coal, Government of India.
44. It is further case of the petitioner that out of the total
area of 35.47 acres of land of Plot Nos.2420 and 2712, land
measuring 28.12 acres have been recorded in the Revisional
Survey khatiyan(not final) in favour of M/s. Bharat Coking
– 15 – W.P.(C) No. 263 of 2006
Coal Limited. Remaining portion of the said land has been
recorded in the name of Government of Bihar with remakrs
‘Awaidh Dakhal’ by certain individuals while 0.56 acres out of
the balance has been recorded as Rasta meant for passage for
general public for transportation. In the remarks column of
the R.S. Khatiyan (not final), there is no mention of any
forest/jungle-jhari etc. against these lands. On the contrary,
there is mention of Dhowras/Goaf/House/Football ground
etc.
45. It has further been stated that working by mechanized
Open cast method was allowed by the Director General of
Mines Safety, Dhanbad again in the year 2005 vide letter
dated 25/2/2005 in respect to the lands in question
alongwith others being Plot Nos. 2420 and 2712. In the light
of the permission granted, the petitioner has carried out coal
mining operations. without any hindrance from the Forest
Department until December, 2005.
46. It is the case of the petitioner that at sudden the entire
coal mining work being carried in East Busseriya colliery has
been stopped on the basis of oral directions issued by the
Forest Department on and from 27/12/2005 without
assigning any reason or issuing any notice in writing to the
petitioner.
47. Consequently, the officials of the petitioner Company
have met the Respondent No.2 personally and appraised him
of the entire aforesaid facts including the fact that coal
mining operations have been carried out on the lands in
question prior to nationalization and even after
nationalization without any hindrance whatsoever from the
Forest Department on the basis of the permission granted by
the D.G.M.S.
– 16 – W.P.(C) No. 263 of 2006
48. However, the grievances of the petitioner have not been
redressed by the authority concerned and further the
petitioner has been threatened by the authority concerned
and their representatives for launching criminal prosecution
against them. Hence the instant writ has been filed.
49. The land in question is shown to be in possession of
raiyats since the year 1924 and 1933. It is evident from the
factual aspect as mentioned hereinabove that the the
superior landlord, Rani Subhadra Kumari by a permanent
lease being Mokrari Patta Deed No.2535 dated 10/11/1924
granted permanent lease for surface right as well as
Zamindari (Intermediary) right for a period of 999 years in
respect of 881 Bighas in favour of one Prabhulal Pranjivan,
the Ex-colliery owner.
50. In reference to that it needs to refer herein that 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.
51. 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– 17 – W.P.(C) No. 263 of 2006
thereunder the Collector may, after giving reasonable
notice to the parties concerned to appear and be heard [* *
*] [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:]
52. It is not in dispute that Bihar Land Reforms Act, 1950
has been enacted to dispense with the intermediary system
so that the rent be directly deposited in the State exchequer
by the raiyats and not to the land lord, the intermediaries.
53. 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.
54. The legislation contained a provision as under Section 4-
h, to achieve the object and intent of the Bihar Land Reforms
– 18 – W.P.(C) No. 263 of 2006
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.
55. 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 authority concerned is mandatory.
56. The provision of Bihar Private Forest Act 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
relevant provisions of the Indian Forest Act, 1927 in
particular Section 29(3) thereof.
57. The Bihar Private Forest Act was enacted for the
purpose of taking care of the private forest area of the
erstwhile State of Bihar in the pre-independence period by
virtue of Sections 14 and 15 (3) of the said Act. 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.
58. 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
– 19 – W.P.(C) No. 263 of 2006
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.
59. The provisions of the Bihar Private Forests Act, 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
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 inquire 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”.
60. 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.
61. Section 17 empowers the Forest Settlement Officer to
enquire into all claims preferred in response to the
– 20 – W.P.(C) No. 263 of 2006
notification and also into the existence of any rights
mentioned in sub-section 3 of Section 15 and not claimed
under Section 16.
62. Section 22 of this Chapter deals with the procedure 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.
63. 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.
64. 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
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– 21 – W.P.(C) No. 263 of 2006
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”
65. It needs to refer herein that The Forest Act, 1927 is a
pre-constitutional legislation enacted by the Indian
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.
66. 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– 22 – W.P.(C) No. 263 of 2006
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.
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.”
67. 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”.
68. 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 proprietary rights, or to the whole or any part of the
forest produce of which the government is ‘entitled’. The– 23 – W.P.(C) No. 263 of 2006
forest land comprised in any such notification is called a
‘protected forest’.
69. 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.
70. 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.
71. 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,
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.
72. 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– 24 – W.P.(C) No. 263 of 2006
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.
73. 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 since 1943.
74. 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.
75. 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.
76. 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– 25 – W.P.(C) No. 263 of 2006
of such property on such terms as may appear to the
Collector to be fair and equitable.
77. Here, it appears that Jatashanker Dossa vide registered
Indenture Deed No. 9053 dated 13/9/1943 sold and
transferred the said 750 Bighas land in favour of East
Busseriya Colliery Company Limited.
78. 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.
79. The second argument which has been advanced on
behalf of State that prior to the notification under the Indian
Forest Act, the said land in Mouza Bowakalan was also
notified as private forest under Section 14 of Bihar Private
Forest Act, vide notification no. 5398 dated 22.5.1947 and
the bearing of Section 29(3) of the Indian Forest Act, 1927
will be there and that is the reason the verbal order of
restrainment passed by the respondent has come since the
area has been declared to be protected forest.
80. We have already referred that of notification of the year
1947, which is for the purpose of taking care of the private
forest by the erstwhile State of Bihar in the pre-independence
period.
81. 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.
82. Learned counsel for the State, therefore, has tried to
impress upon the Court by virtue of notification dated
22.05.1947 since the State of Bihar has taken decision to
bring the private forests also under the fold of protected area,– 26 – W.P.(C) No. 263 of 2006
hence the provision of Section 29 of the Indian Forest Act,
1927 will apply.
83. 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.
84. 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.
85. 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.
86. 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.
87. The aforesaid fact cannot be disputed since even as per
the case of the State, the said verbal restrainment order is
based upon the notification issued under Section 29(3) of the
Indian Forest Act, 1927.
88. 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.
89. Herein, the reference of 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.–
– 27 – W.P.(C) No. 263 of 2006
(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.
(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.”
90. 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.
91. 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– 28 – W.P.(C) No. 263 of 2006
the Legislature of the State shall, to the extent of the
repugnancy, be void.
92. 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 and Anr., (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,
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:
– 29 – W.P.(C) No. 263 of 2006
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
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
– 30 – W.P.(C) No. 263 of 2006
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.”
93. Further, the similar view has been taken by the Hon’ble
Apex Court in the case of Govt. of A.P. and Anr. vs. J.B.
Educational Society and Anr., (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.”
94. 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 and Ors. vs. Mar Appraem
Kuri Co. Ltd. and Anr., (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
law to prevail in the State and override the provisions of
the Central Act in its applicability to that State only.”
95. Likewise, the Hon’ble Apex Court in the case of K.A.
– 31 – W.P.(C) No. 263 of 2006
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.”
96. 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
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.
97. 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 22.05.1947, has found that the said
– 32 – W.P.(C) No. 263 of 2006
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.
98. 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.
99. 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.
100. 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.
101. Here, the land in question will be said to be settled in
the year 1943 in favour of the private parties 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.
102. Further, if the land was in possession of the private
parties since the pre independence period based upon that a
lease deed was entered 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.
103. 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
– 33 – W.P.(C) No. 263 of 2006
not applicable if the settlement has been shown to be pre
01.01.1946.
104. 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 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– 34 – W.P.(C) No. 263 of 2006
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
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
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– 35 – W.P.(C) No. 263 of 2006
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)
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
– 36 – W.P.(C) No. 263 of 2006
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.”
105. 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.
106. Now adverting to the facts of the case, it is evident from
the record that the petitioner had already applied for renewal
of mining lease in Form J and the District Mining Officer,
Dhanbad has also acknowledged receipt of application for
renewal of mining lease dated 26.10.2005 in Form D.
107. Further, as per the affidavit filed by the petitioner that
during pendency of this writ application a Joint Inspection
was carried out by the officers of BCCL and the Forest
personnel on 7.5.2010 and only 4 trees were found. None of
these trees fall under the category of Forest.
108. Further it has come on record by way of rejoinder filed
by the petitioner to the counter affidavit that the land in
question falling under C.S Khata No. 118, Plot No.
2420having an area of 17.66 Acres as also Plot No. 2712
area 17.81 totaling 35.47 Acres has now been recorded in
the Revisional Survey ie. R.S Record of Rights in the name of
the petitioner in R S Khata No. 385 and final record of Rights
have also been published u/s 83 (2) of the CNT Act, 1908.
109. It is apparent that the notification dated 1.11.1968
contained in Annexure A to the Counter affidavit has not
been issued after undergoing due process of law since no
enquiries have been made as required u/s 29 (3) of the
Forest Act and hence the existing rights on the date of
– 37 – W.P.(C) No. 263 of 2006
notification have not extinguished accordingly the
notification is incomplete.
110. As per the mandate of 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 01.11.1968 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.
111. 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 authority concerned cannot be allowed to take the
aid of the notification said to be issued under Section 29(3)
way back on 01.11.1968 and even after lapse of so many
years there is no output with respect to the enquiry.
112. 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 50 years while on the other hand in
the year 2005, the respondent has restrained 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
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
– 38 – W.P.(C) No. 263 of 2006
territory the subsidiary companies have also been constituted
one of them is Bharat Coking Coal Limited.
113. The other question is that when the mining operation as
being carried out by virtue of Coal Nationalisation Act, 1973,
then where is the question the authority without determining
and without getting the report in view of provision of section
29(3) of the Act, 1927 has given such restrainment order.
114. Further, it is evident from the material on record that in
view of the provision of Section 83(2) of the CNT Act, the final
record of right has been issued and the same has attained its
finality.
115. This Court, in view of the aforesaid discussion, is of the
view that the issues, which have been framed, have been
answered accordingly.
116. This Court, having answered the issues framed by this
Court, is of the view that it is the authority concerned who
without conducting the due enquiry and coming to the
conclusion of fact finding based upon the provision of Section
29(3) of the Indian Forest Act, 1927, restrained the petitioner
which requires interference by this Court.
117. Accordingly, the respondents are hereby directed to not
interfere in any manner with the coal mining activities being
carried out by the petitioner on Plot Nos. 2420 and 2712 of
Khata No.118 of Mouza-Bowakalan @ Barki Bowa in the
district of Dhanbad.
118. However, the authority concerned is at liberty to raise
the issue of title, if it so wishes by ventilating the grievance
before the competent court of civil jurisdiction.
119. Accordingly, the writ petition stand allowed.
– 39 – W.P.(C) No. 263 of 2006
120. Pending Interlocutory Application(s), if any, stand
disposed of.
I Agree (Sujit Narayan Prasad, J.)
(Navneet Kumar, J.) (Navneet Kumar, J.)
High Court of Jharkhand, Ranchi
Dated: 14/01/2025
Saurabh/-
A.F.R.
- 40 - W.P.(C) No. 263 of 2006