Equivalent Citation: 2014(2)CGLJ500, 2014(IV)MPJR30,AIR 2015(NOC)527 CHH
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
S.A. No. 455/2003
Decided On: 10.03.2014
Alorani
Vs.
Divisional Forest Officer and Ors.
Vs.
Divisional Forest Officer and Ors.
Coram:Sanjay K. Agrawal, J.
1. The substantial question of law formulated and to be answered in this appeal is as under:-
"Whether the First Appellate Court was justified in reversing the finding of trial Court holding that the suit land having been notified under Section 4 of the Indian Forest Act, 1972 as reserved forest, it cannot be allotted/leased out by the Revenue Officer to the plaintiff?"
The imperative facts required for determination in this appeal are as under:-
[For sake of convenience, the parties would be referred hereinafter as per their status before the trial Court]
(2.1) Plaintiff-Smt. Alorani commenced an action seeking declaration of her title and permanent injunction inter alia that the scheduled suit property bearing Khasra No. 224/1, area 25.060 hectare situated in village Tatapani, Tahsil Ramanujganj, District Balrampur is recorded as was allotted to her by the Revenue Officer in duly constituted proceeding on 26.07.1985 as she is cultivating the said land for fairly long time, which is being interfered by the State Forest Authorities and sought declaration of title and permanent injunction.
(2.2) The said suit was opposed by the State Authorities by taking principal defence that the order of allotment granted by the Revenue Officer has been revoked by the Collector on 16.6.1987; and further stated that the land cannot be settled by the Revenue Officer under the provisions of Chhattisgarh Land Revenue Code and, therefore, the suit be dismissed.
2. The trial Court, by its judgment & decree did not accept the defence taken by the State Government and its authorities and decreed the suit and held that plaintiff is entitled for decree of declaration of title and permanent injunction.
3. Defendants/State Authorities filed first appeal there against. First appellate Court by its judgment and decree dated 23.4.2003 allowed the appeal holding inter alia that though the order of cancellation of patta dated 16.6.1987 passed by Collector has not been produced but the scheduled suit land bearing Khasra No. 224/1 is a land which has been declared as Reserved Forest and, therefore, the Revenue Officer could not have allotted the said land to the plaintiff.
4. Questioning the legal acceptability and correctness of the judgment and decree impugned passed by the first appellate Court, plaintiff preferred instant second appeal under Section 100 of the Code of Civil Procedure.
5. During pendency of the appeal, an application along with copy of notification dated 11.12.1970 has been filed stating inter alia that suit bearing Khasra No. 224, total area 63.23 acres at village Tatapani, Range Balrampur, Block Dadar has been declared as Reserved Forest under Section 4 of the Indian Forest Act, 1927. Copy of the same has been served to the learned counsel for the plaintiff but no reply opposing the said application has been filed.
6. In have heard and considered the application. Looking to the fact that the said document is necessary for just and proper disposal of the appeal as it could not be produced after exercise of due diligence by the State Authorities, application is allowed and the documents filed along with this application are admitted into record.
7. Mr. V.K. Pandey, learned Counsel appearing for the appellant would submit that the first appellate Court was absolutely unjustified in reversing the well reasoned finding of the trial Court holding that the respondents/defendants failed to establish the cancellation of lease by producing alleged order dated 16.6.1987 passed by Collector and, therefore, judgment and decree passed by the first appellate court be set aside and that of judgment and decree of the trial Court be restored.
8. Per contra, Shri Vinay Harit, Deputy Advocate General for the State/respondents would submit that entire area of Khasra No. 224/1 which is 25.060 hectare of land has been declared as reserved forest under Section 4 of the Indian Forest Act, 1927 (for short 'the Act, 1927') and, therefore, by virtue of Section 2(iii) of the Forest (Conservation) Act, 1980 no forest land can be assigned by way of lease/patta to the plaintiff by Revenue Officer and patta Granted to the plaintiff has already been cancelled by the Collector by order dated 16.6.1987 and, thus, the appeal deserves to be dismissed.
9. In have heard learned counsel appearing for the parties and perused the records of both the Courts below including judgment and decree impugned with utmost circumspection.
10. In order to appreciate the point in dispute, brief survey of the plaint averments would be necessary.
(10.1) That the plaintiff in paragraphs 1 & 2 of the plaint states as under:-
((10.2) Thereafter, paragraph 3 of the written statement states as under:-
11. A close reading of paragraphs 1 & 2 of the plaint and para 3 of the written statement would show that, it is no longer in dispute that the land bearing khasra No. 224/1, total area 25.060 hectare situated at village Tatapani is a land recorded in the revenue records as and it is not a revenue land and the same was claimed by the plaintiff stating that she is cultivating the land for last 12 years, she being the landless lady, the land be allotted to her, it was granted on lease/patta by order of Revenue Officer dated 26.7.1985.
12. Before entering into the evidence, it would be necessary to further notice the notification dated 11th December, 1970 dated issued under the provisions of Section 4 of the Act, 1927.
13. A perusal of the aforesaid notification, it would luminously clear that the land bearing Khasra No. 224, area 25.060 hectare as stated in the plaint which comes to 62.23 acres at village Tatapani, block Dadar, District Balrampur has been declared as reserved forest in exercise of power conferred under Section 4(1)(a) of the Act, 1927 by the State Government, the said notification has been duly published in the Madhya Pradesh Rajpatra on 11th December, 1970 and since then the scheduled suit land, which is part of Khasra No. 224 stands recorded reserved forest under the provisions of the Act, 1927.
14. The question to be considered in this appeal is, whether the land which is reserved forest i.e. under Section 4 of the Act, 1927 can be allotted/leased act to the plaintiff by the State Government or it is revenue authority?
15. Section 2 of the Forest (Conservation) Act, 1980 reads as unde:-
"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.-
(1) 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 ceased to be reserved.
(2) That any forest land or any portion thereof may be used for any non-forest purpose.
(3) 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 organization not owned, managed or controlled by Government.
(4) 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 reafforestation.
[Explanation.- For the purpose of this section "non-forest purpose" means the breaking up or clearing of any forest land or portion thereof for-
(a) The cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants.
(b) Any purpose other reafforestation,
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 communication and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes."
16. The Supreme Court in case of T.N. Godavarman Thirumulkpad Vs. Union of India and other, MANU/SC/0278/1997 : (1997) 2 SCC 267 has held that the word "forest" must be understood according to its dictionary meaning, this description covers all statutorily recognized 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. Para 4 of the report is as under:-
"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 recognized forest, 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 to understood irrespective of the ownership or classification there of. This aspect has been made abundantly clear in the decisions of this Court in Amdeica Quarry Works v. State of Gujarat, MANU/SC/0853/1988 : (1987) 1 SCC 213, Rural Litigation and Entitlement Kendra v. State of U.P., MANU/SC/0415/1988 : (1989) Supp (1) SCC 504 and recently in the order dated 29-11-1996 (Supreme Court Monitoring Committee v. Mussoorie Dehradun Development Authority, WP(C) No. 749 of 1995 decided). The earlier decision of this Court in State of Bihar v. Banshi Ram Modi, MANU/SC/0012/1985 : (1985) 3 SCC 643 has, therefore, to be understood in the light of these subsequent decisions. 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."
17. Section 2 of the Forest (conservation) Act, 1980 reads as under:-
"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.-
(v) 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 there of, shall cease to be reserved; (vi) That any forest land or any portion there of may be used for any non-forest purpose;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 communication and construction of fencing, bridges and culverts, dams, waterholes, trench marks, boundary marks, pipelines or other like purposes."
(vii) That any forest land or any portion there of may be assigned by way of lease or otherwise to any private person or to any authority, corporation, agency or any other organization not owned, managed or controlled by Government;
(viii) That any forest land or any portion there of may be cleared of trees which have grown naturally in that land or portion, for the purpose of using it for reafforestation.
[Explanation:- For the purpose of this section "non-forest purpose" means the breaking up or clearing of any forest land or portion there of for-
(a) The cultivation of tea, coffee, spices, rubber, palms, oil-bearing plants, horticulture crops or medicinal plants;
(b) Any purpose other than reforestation,
18. A close reading of Section 2 read with sub Clause (iii) of the Act, 1927, it would appear that State Government or any authority cannot assign by way of lease or otherwise to any private person or to any authority, the reserved forest notified under Section 4 of the Act, 1927 read with Section 2 of the Forest (Conservation) Act, 1980 without prior approval of the Central Government; as Section 2 of the Act, 1980 has been given overriding effect to any other law for the time being in force.
19. The Supreme Court in case of A. Chowgule & Co. Ltd. Vs. Goa Foundation & Co. Ltd., MANU/SC/3578/2008 : 2008 AIR SCW 5922 held that prior approval is required for the diversion of any forest land and its use for some other purpose. Para 6 of the report states as under:-
"6. A bare perusal of the aforesaid provision would show that prior approval is required for the diversion of any forest land and its use for some other purpose. This is further fortified by a look at Rule 4 which provides that every State Government or other authority seeking prior approval under Section 2 of the Act shall submit a proposal to the Central Government in the prescribed form and Rule 6 stipulates that the proposal would be examined by a committee appointed under Rule 2-A within the parameters and guidelines postulated in Rule 5. There is nothing on record to suggest that this procedure had been adopted."
20. Again the Supreme Court in case of Tarun Bharat Sangh, Alwar Vs. Union of India and others, MANU/SC/0823/1993 : 1993 AIR SCW 1300 has held that once an area is declared as protected forest, it becomes forest within the meaning of Section 2 of the 1980 Act and prior approval of the Central Government is a condition precedent for grant of lease under the Rajasthan Minor Concession Rules, 1986.
21. The Supreme court in case of Natural Lovers Movement Vs. State of Kerala & others, 2009 AIR SCW 3656 held that after enforcement of Forest Conservation Act, 1980, the State Government or any authority cannot make an order or issue direction for de-reservation of reserved forest or permit for the use of forest land or any portion therefore by way of lease. Para 27(2) of the report as under:-
"27(2) After the enforcement of the 1980 Act, neither the State Government nor any other authority can make an order or issue direction for de-reservation of reserved forest or any portion thereof or premise use any forest land or any portion there of by way of lease or otherwise to any private person or to any authority, corporation, agency or organization not owned, managed or controlled by the Government except after obtaining prior approval of the Central Government."
22. The above decision of the Supreme Court in aforesaid case T.N. Godavarman Thirumulkpad (supra) has been followed by this Court in case of Baliram Vs. Board of Revenue & another, MANU/CG/0086/2008 : 2009 (1) CGLJ 30 and it has been clearly held that once land is recorded as "Bada Jhad Ka Jangal" no allotment can be made by the State authorities without obtaining permission of the Central Government. Para 6 of the report is as under:-
"6. There is no irregularity or infirmity in the order passed by the Board of Revenue. Admittedly, the land is recorded as "Bada Jhad Ka Jangal", in the revenue records. Once it is recorded as 'Bade Jhad Ka Jangal', no allotment can be made by the State Authorities without obtaining permission of the Central Government. It is evident from the various decisions of the Hon'ble Supreme Court in the matter of T.N. Godavarman Thirumulkpad (supra)."
23. Keeping in view, the aforesaid principles, it is held that scheduled suit land is a reserved forest duly notified under the provisions of Section 4 of the India Forest Act, 1927 and once the land is declared as reserved forest under the provisions of Section 4 of the Act of 1927, it becomes forest land within the meaning of Section 2 of the Forest Conservation Act, 1980, no allotment/lease Could have been made by the State Authorities without obtaining permission of the Central Government to plaintiff. Therefore, the first appellate Court is absolutely and perfectly justified in reversing the finding of the trial Court decreeing the suit holding the plaintiff to be the title holder of the scheduled suit land which is the reserved forest duly protected thus, the substantial question of law is answered accordingly.
24. Resultantly, the appeal fails and is hereby dismissed. Judgment and decree passed by the first appellate Court dated 23.4.2003 dismissing the suit is hereby affirmed. The suit stands dismissed. No order as to costs. A decree be drawn up accordingly.
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