Allowed

Ms Shakambari Nirman Private Limited Represented By One Of Its Director Sri Naresh Prasad Lodha v. The State Of Jharkhand And Ors.

Jharkhand HC11 Dec 2018WPC/5712/2016

Case brief

AI extract

What is this about?

Writ petition seeking direction to register sale deeds for flats constructed on land. High Court allowed the petition, directing registration to proceed as the Respondents failed to prove the land was recorded as 'Forest/Jungle Jhari' per the Forest Conservation Act, 1980.

What did the court decide?

The petitioner is directed to register the sale deeds of the flats constructed over the said land, provided they meet the requirements of the Registration Act, 1908.

Ms Shakambari Nirman Private Limited Represented… — Environment and Pollution | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No. 5712 of 2016

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M/S Shakambari Nirman Private Limited, Kolkata (West Bengal), represented by one of its Directors, Sri Naresh Prasad Lodha, Chas, Bokaro

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….. Petitioner

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Versus

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The State of Jharkhand

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The Deputy Commissioner, Bokaro

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The Additional Collector, Bokaro

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The Sub-Divisional Officer, Bokaro

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The Circle Officer, Chas, Bokaro

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The District Sub-Registrar, Chas at Bokaro

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The Conservator of Forest, State of Jharkhand, Ranchi

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The Divisional Forest Officer, Bokaro ….. Respondents

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----- CORAM HON’BLE MR. JUSTICE RAJESH SHANKAR

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----For the Petitioner: Mr. S. N. Das For the State: Mr. V. K. Prasad, S.C (L&C) -----

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09/11.12.2018 The present writ petition has been filed for issuance of a direction upon the District Sub-Registrar, Bokaro (the respondent No.6) to register the deeds of transfer of the flats constructed and developed by the petitioner over Plot No. 7562 under Khata No. 752 of Mouza-Chas measuring an area of 97 decimals out of 2.55 acres (hereinafter referred to as ‘the said land’).

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The factual background of the case, as stated in the writ petition, is that the land appertaining to Khata No. 752, Plot No. 7562, Mouza-Chas, measuring an area of 113.92 acres belonged to the ex-landlord Manu Mahata and others under Ejmal Khewat No. 5/14 in the last C.S Survey done in the year 1924-28 of Manbhum District. Thereafter, sometime in the year 1936, the ex-landlord settled 2.55 acres of land with Gayamoni Mahatani and put her in possession of the same and her name was also recorded in Register-II. She died leaving behind her two sons, namely, Anand Mahato and Narayan Mahato who sold 1.25 acres of the said land to Jogendra Kumar Mahato, Dulali Devi, Golki Devi, Ajit Mahato and Chadobala Mahatani and put them in possession of the same and their names were mutated vide Mutation Case No. 593(iii)/1986-87 and thereafter they paid the rent to the State Government. Jogendra Kumar Mahato and others filed Title Suit No. 26 of 1989 in the Court of the Sub-Judge-II at

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Chas (Bokaro) for declaration of their permanent occupancy raiyati right over 2.55 acres of land which was decreed on 22.08.1991 in favour of Jogendra Kumar Mahato and others declaring their right upon the same. Title Appeal No. 59 of 1991 preferred before the Additional District Judge, Bokaro and Second Appeal No. 1 of 1998 (R) preferred before the Patna High Court (Ranchi Bench) by the State of Bihar were also dismissed. Civil Appeal No. 5471 of 1999 filed before the Hon’ble Supreme Court was dismissed on 05.04.2005 and Civil Review No. 1211 of 2005 was also dismissed on 03.08.2005. A development agreement was entered into between the petitioner and the owner of the said land and thereafter the petitioner constructed flats over the same after getting the plan sanctioned by MADA. Out of 90 sanctioned flats, 40 flats have been completed and sold to the respective purchasers of the flats and their documents have been registered, delivery of 15 flats have been given to the intending purchasers, 30 flats have been completed and final finishing work is under process and 4 flats have not yet been booked and are open for sale. In the meantime, the Forest Department started raising objection in registration of the sale deeds and as such a representation before the Deputy Commissioner, Bokaro was made by the petitioner on 27.06.2016 with a copy to the respondent No.6. Thereafter, the Deputy Commissioner, Bokaro asked the petitioner to meet the Additional Collector, Bokaro with respect to the said matter. The petitioner repeatedly met the Additional Collector, Bokaro for issuing necessary direction for registration of the sale deeds of the flats by the respondent No.6. The petitioner also met the Deputy Commissioner, Bokaro for taking necessary action in this regard. However, the Divisional Forest Officer, Bokaro Forest Division, Bokaro (the respondent No.8) vide letter No. 2681 dated 08.08.2016 raised objection that the land in question has been recorded as ‘Jungle Jhari’ alleging violation of the Forest Conservation Act, 1980 [in short ‘the Act, 1980’] by the petitioner and requested the Sub-Divisional Officer, Bokaro to stop transfer of the constructed flats. Further, the Sub-Divisional Officer, Chas, Bokaro vide letter No. 1024/Go dated 16.08.2016, requested the

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Deputy Commissioner, Bokaro to stop the sale of the flats and sought guidelines. On 17.08.2016, the Deputy Commissioner, Bokaro while referring the letters dated 08.08.2016 & 16.08.2016 declined to take any action on the request of the petitioner.

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The learned counsel for the petitioner submits that the respondent No.8 or any other authority of the Government of Jharkhand has got no right to sit in appeal to disturb the right, title, interest of the petitioner over the said land as the building has been constructed over the same by lawful acquisition of title through purchase. It is further submitted that the record of right nowhere shows that any part of the said land has been recorded as ‘Jungle Jhari’. Since all the judgments and orders of the competent Courts have been accepted as the matter of records, the respondents are estopped from raising any such plea to harass the petitioner as the matter has attained its finality. Though the petitioner, after fulfilling all the requirements, has constructed the building, yet the right of business of the petitioner has been illegally interfered by the respondents. The right of business and property are the Constitutional rights of the petitioner and the intending purchasers of the flats. The building has been constructed after getting the plan sanctioned by the competent authority and the Forest Department never raised any objection during construction period. It is further submitted that the State authorities, after losing the case up to the Hon’ble Supreme Court, should not be permitted to misuse their powers in claiming right over the said land ignoring the permanent injunction granted against them. Though the record of right/Khatian is said to be torn, an adverse inference may be drawn against the respondents as the certified copy was issued prior to tearing of the same. Moreover, the judgments and decrees of the competent Courts have attained their finality and the State respondents including the forest authorities have lost the cases on contest.

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Per-contra, the learned counsel for the respondent-State submits that the nature of the land has been recorded in the Khatian as ‘Jungle Jhari’ and in view of the objection raised by the respondent No.8 vide his letters dated 08.08.2016

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& 16.08.2016, the respondent No.6 has not been registering the documents of the flats constructed by the petitioner over the said land. It is further submitted that the Hon’ble Supreme Court in the case of T. N. Godavarman Thirumulkapad etc. Vs. Union of India & Ors. reported in (1997) 2 SCC 267 has specifically held that if the nature of the land is ‘Jungle Jhari’, any nonforestry work cannot be done over the same, as the same would be violative of Section 2 of the Act, 1980 and as such the respondents have rightly raised objection regarding the construction of flat over the said land. It is further submitted that the said land is of ‘Gair Abad Malik Khata’ and a notification dated 24.05.1958 was issued by the Governor of Bihar whereby a total area of 166.48 acres of the land was declared as protected forest which is in the possession of the Forest Department. By virtue of the Act, 1980 as also the pronouncement of several judgments of the Hon’ble Supreme Court, the definition of forest land has been enlarged and the land recorded as ‘Jungle Jhari’ in revenue records or in survey report is to be considered as a forest land and no non-forestry work can be carried out over the said land. The nature of the forest land cannot be changed or altered by any means and without approval of the Central Government. The petitioner has admitted that the relevant portion of the Khatian is torn and obviously this step has been adopted to nullify the claim of the government that the land in question is recorded as ‘Jungle Jhari’ which comes within the definition of forest land. Letter No. 2681 dated 08.08.2016 issued by the respondent No.8 is quite legal and valid in the eyes of law and the same requires no interference by this Court. It is further submitted that by virtue of the judgment rendered in T.S No. 26 of 1989, the plaintiffs of that case had got only the occupancy right, however, after enactment of the Act, 1980 and particularly as per Section 2 of the same, the land recorded as ‘Jungle Jhari’ comes under the definition of the forest land and therefore the land in question cannot be used for non-forestry purposes. The petitioner is required to do only the forestry work over the said land.

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Heard the learned counsel for the parties and perused the relevant materials available on record. The petitioner seeks direction upon the respondent No.6 to allow registration of the flats constructed over the said land. The respondents have raised objection to the said prayer of the petitioner primarily on the ground that the land in question has been recorded in the R.S Record of Right as ‘Jungle Jhari’ and thus in view of the judgment of the Hon’ble Supreme Court rendered in the case of T. N. Godavarman Thirumulkapad (Supra) and Section 2 of the Act, 1980, no non-forestry work is permissible over the same.

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Section 2 of the Forest Conservation Act, 1980 provides as under:-

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“ S.2: Restriction on the de-reservation of forests or use of forest land for non-forest purpose Notwithstanding anything contained in any other law for the time being in force in a State, no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing,

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(i) that any reserved forest (within the meaning of the expression ‘reserved forest‘ in any law for the time being in force in that State) or any portion thereof, shall cease to be reserved;

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(ii) that any forest land or any portion thereof may be used for any non-forest purpose;

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(iii) that any forest land or any portion thereof may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organisation not owned, managed or controlled by Government;

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(iv) that any forest land or any portion thereof may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for re afforestation.]

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Explanation:- For the purposes of this section ‘‘nonforest purpose” means the breaking up or clearing of any forest land or portion thereof for‘

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(a) the cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants;

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(b) any purpose other than re-afforestation, but does not include any work relating or ancillary to conservation, development and management of forests and wild-life, namely, the establishment of check-posts, fire lines, wireless communications and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes.”

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The Hon’ble Supreme Court in the case of T. N. Godavarman Thirumulkapad (Supra) has held as under:-

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“4. The Forest Conservation Act, 1980 was enacted with a view to check further deforestation which ultimately results in ecological imbalance; and therefore, the provisions made therein for the conservation of forests and for matters connected therewith, must apply to all forests irrespective of the nature of ownership or classification thereof. The word “forest’’ must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 2(i) of the Forest Conservation Act. The term “forest land”, occurring in Section 2, will not only include “forest” as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership. This is how it has to be understood for the purpose of Section 2 of the Act. The provisions enacted in the Forest Conservation Act, 1980 for the conservation of forests and the matters connected therewith must apply clearly to all forests so understood irrespective of the ownership or classification thereof. This aspect has been made abundantly clear in the decisions of this court in Ambica Quarrry Works and Ors. v. State of Gujarat and Ors., Rural Litigation and Entitlement Kendra v. State of U.P., and recently in the order in Supreme Court Monitoring Committee v. Mussorie Dehradun Development Authority and Ors.. The earlier decision of this court in State of Bihar v. Banshi Ram Modi and Ors., has, therefore, to be understood in the light of these subsequent decision. We consider it necessary to reiterate this settled position emerging from the decisions of this court to dispel the doubt, if any, in the perception of any State Government or authority. This has become necessary also because of the stand taken on behalf of the State of Rajasthan, even at this late stage, relating to permissions granted for mining in such area which is clearly contrary to the decisions of this court. It is reasonable to assume that any State Government which has failed to appreciate the correct position in law so far, will forthwith correct its stance and take the necessary remedial measures without any further delay.”

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In view of the provision made under Section 2 of the Act, 1980 and the judgment of the Hon’ble Supreme Court rendered in the case of T. N. Godavarman Thirumulkapad (Supra), it is abundantly clear that Section 2 of the Act, 1980 is applicable to the Government as well as any private forest land so as to check deforestation which ultimately results in ecological imbalance.

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The term ‘forest’ does not only include forest as understood in the dictionary sense, but also includes any land recorded as the forest in the Government record irrespective of its ownership.

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The petitioner has specifically denied that the said land is recorded as ‘Jungle Jhari’. Learned counsel for the petitioner while referring to the photo copy of the certified copy of the Khatian annexed as Annexure-32 to I.A. No. 230/2017 dated 10.01.2017, submits that the nature of the said land is ‘Puratan Patit’ which is not regarded as a forest land. As per the Jharkhand Land Manual, word ‘Patit’ has been defined as open land which is unproductive nonagricultural land and thus ‘Puratan Patit’ means old and long standing fallow land.

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The respondents have not brought any document on record in support of their contention that the said land is recorded as ‘Jungle Jhari’. Moreover, in the judgment passed in T.S No. 26/89, it has been held that the said land is raiyati land and the said finding has been confirmed up to the Hon’ble Supreme Court. Thus, I find no substance in the said argument of the learned counsel for the respondents particularly due to unavailability of any document on record to suggest that the said land is recorded in the government record as ‘Jungle Jhari’.

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The next limb of the argument of the learned counsel for the respondents is that the said land was declared as protected forest vide notification dated 24.05.1958 which is in possession of the Forest Department. I find no substance in the said argument as well. In Title Suit No. 26 of 1989, the Sub-Judge-II, Chas, Bokaro has specifically held that the respondent-State has neither got any title in view of the notification dated 24.05.1958 nor has come in possession of the said land. The said judgment has attained finality as the same has been affirmed up to the Hon’ble Supreme Court. Thus, the notification dated 24.05.1958 would also not help the case of the respondents.

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Otherwise also, it appears that on the letter of the respondent No.8 dated 08.08.2016, the respondent No.4 requested the respondent No.2 to issue

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necessary direction. However, no order has been passed by the respondent No.2 in this regard despite repeated requests of the petitioner. Thus, the said action of the respondent authorities appear to be arbitrary and unreasonable and the same requires intervention by this Court under the writ jurisdiction. The registration of any sale-deed or refusal of the same is governed by the provisions of the Registration Act, 1908 (in short ‘the Act, 1908’) and as such the same must be done in conformity with the relevant provisions of the said Act. If any document fulfills all the necessary requirements provided under the Act, 1908, the same cannot be arbitrarily refused to be registered. Refusal of registration of any document infringes valuable right of a person and thus the same must be supported by a justifiable reason.

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Under the aforesaid facts and circumstances, the present writ petition is allowed. The respondent authorities are directed to register the sale deeds of the flats constructed over the said land, if the same otherwise fulfill the other necessary requirement(s) provided under the Registration Act, 1908.

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Consequently, I.A. Nos. 230/2017 & 4766/2017 also stand disposed of.

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(RAJESH SHANKAR, J)

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Satish/A.F.R

Ms Shakambari Nirman Private Limited Represented By One Of Its Director Sri Naresh Prasad Lodha v. The State Of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

Ms Shakambari Nirman Private Limited Represented By One Of Its Director Sri Naresh Prasad Lodha v. The State Of Jharkhand And Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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