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Judgment
Sanjay Kumar Dwivedi, J
Let Cr.M.P. No.3461 of 2019 be detached from aforesaid other petitions.
Cr.M.P. No.3461 of 2019
Heard Mr. Rama Kant Tiwari, learned counsel for the petitioners and Mr. Gautam Rakesh, learned counsel for the State.
This petition has been filed for quashing of the entire criminal proceeding of Complaint Case No.256 of 2019 including the order taking cognizance of offence under Section 33 and 63 of the Indian Forest Act (Bihar Amendment Act, 1989) dated 03.05.2019, pending in the court of the learned Chief Judicial Magistrate, Bokaro.
The complaint case has been filed alleging therein that on 10.04.2019, Surendra Bhagat, Forest Beat Officer, Chas Beat, Chas (Bokaro) informed opposite party no.2 that vide Jurm Prativedan No.24 dated 27.02.2019, the petitioners were constructing wall in constructed house in Plot No.337, which was declared as protected forest vide notification no. C/F-17014/58-1429 R dated 24.05.1958 and the petitioners have encroached the forest land (Plot No.337) and constructed the house and they did not appear before him on call and then Divisional Forest Officer, sent prosecution paper to the learned Chief Judicial Magistrate, Bokaro on 30.04.2019 vide memo no.1363, upon which, vide order dated 03.05.2019, the learned Chief Judicial Magistrate, Bokaro has been pleased to pass an order taking cognizance of offence under Section 33 and 63 of the Indian Forest Act, 1927 (Bihar Amendment Act, 1989) against the petitioners.
Mr. Rama Kant Tiwari, learned counsel for the petitioners submits that the subject matter of this case is of land bearing Plot No.337, Khata No.48, ad-measuring 0.04 acre. He further submits that the petitioners have earlier moved before this Court in Cr.M.P. No.98 of 2016, which was decided along with Cr.M.P. No.2604 of 2016 vide order dated 01.04.2019. He also submits that the plot in question was considered by considering the entire documents and thereafter a Coordinate Bench of this Court has quashed the proceeding in those cases. He further submits that during the pendency of those proceedings, present complaint case has been filed against the petitioners. He also submits that the encroachment proceeding vide B.P.L.E. Case No.61 of 2016 was earlier initiated against the petitioners and vide order dated 22.09.2016, the opposite party no.2 had passed the order against the petitioners, which was set aside vide order dated 17.12.2018 by the Collector-cum-District Magistrate, Bokaro in B.P.L.E. Appeal No.189 of 2016. He further submits that Title Suit Nos. 17 of 1980 and 18 of 1980 filed on behalf of the Forest Department relating to Plot Nos. 337 and 370, have been dismissed and no appeal has been filed against the dismissal of the said Title Suits by the Forest Department. He also submits that Title Suit No.33 of 2000 was filed on behalf of one Suresh Kumar and another against the Forest Department relating to Plot No.370 which was decreed on 28.03.2012 by the learned Sub-Judge-IV, Bokaro, against which, the Forest Department has preferred an appeal vide Title Appeal No.17 of 2012 which was also dismissed vide order dated 31.07.2014 and, thereafter, Forest Department has not challenged the said judgment and decree. On these grounds, he submits that entire criminal proceeding is vitiated.
Mr. Gautam Rakesh, learned counsel for the State submits that these are the subject matters of trial and this Court may not entertain this petition under Section 482 Cr.P.C.
On perusal of the documents on record, it transpires that Plot No.337 was the subject matter before this Court in Cr.M.P. No.98 of 2016 with Cr.M.P. No.2604 of 2016, which were allowed by a Coordinate Bench of this Court vide order dated 01.04.2019 and the complaint cases were quashed.
In view of these facts and considering that the Deputy Commissioner, Bokaro, it is evident that the said land does not come under the protected forest area rather it is a raiyati land of these petitioners, accordingly, in view of the unimpeachable documents brought on record, further continuation of the proceedings will only lead to wastage of time and abuse of the process of the court.
In that view of the matter, the entire criminal proceeding of Complaint Case No.256 of 2019 including the order taking cognizance of offence under Section 33 and 63 of the Indian Forest Act (Bihar Amendment Act, 1989) dated 03.05.2019, on the basis of the prosecution report dated 10.04.2019, pending in the court of the learned Chief Judicial Magistrate, Bokaro are, hereby, quashed.
Accordingly, the petition (Cr.M.P. No.3461 of 2019) stands allowed and disposed of.
Interim order, if any, stands vacated.
Cr.M.P. Nos.3031/2019, 3428/2019, 594/2020, 628/2020 & 631/2020
Heard Mr. Rama Kant Tiwari, learned counsel for the petitioners, Mr. Ravi Prakash, Mr. P.D. Agrawal and Mr. Gautam Rakesh, learned counsel for the State.
In all these petitions, common question of facts and laws are involved and that is why with consent of the parties, all these petitions have been heard together.
In Cr.M.P. No.3031 of 2019, the prayer is made for quashing of entire criminal proceeding of Complaint Case No.396 of 2018 (Forest) and cognizance order dated 08.01.2019, pending in the court of the learned Judicial Magistrate, 1st Class, Bokaro, in Cr.M.P. No.3428 of 2019, the prayer is made for quashing of entire criminal proceeding of Complaint Case No.705 of 2018 and cognizance order dated 19.12.2018, pending in the court of the learned Judicial Magistrate, 1st Class, Bokaro, in Cr.M.P. No.594 of 2020, the prayer is made for quashing of entire criminal proceeding of Complaint Case No.563 of 2018 (Forest) and cognizance order dated 14.12.2018, pending in the court of the learned Judicial Magistrate, 1st Class, Bokaro, in Cr.M.P. No.628 of 2020, the prayer is made for quashing of entire criminal proceeding of Complaint Case No.348 of 2018 and cognizance order dated 19.12.2018, pending in the court of the learned Judicial Magistrate, 1st Class, Bokaro and in Cr.M.P. No.631 of 2020, the prayer is made for quashing of entire criminal proceeding of Complaint Case No.1041 of 2018 and cognizance order dated 11.07.2019, pending in the court of the learned Judicial Magistrate, 1st Class, Bokaro.
In all these cases, Plot No.15 is the subject matter. The learned court has received the prosecution report along with xerox copy of documents under Section 33 of the Indian Forest Act, 1927 against the petitioners with allegation that on inspection of the alleged forest area, some persons were found engaged in constructing pucca house by encroaching Plot No.15. On these backgrounds, the aforesaid Complaint Cases have been filed against the petitioners and thereafter cognizance have been taken against them.
Mr. Rama Kant Tiwari, learned counsel for the petitioners submits that no offence under Section 33 of the Indian Forest Act is made out against the petitioners as the Plot No.15 is the raiyati land, which has been purchased by the petitioners by registered sale deed from Adarsh Co-operative House Construction Society Ltd., Adarsh Nagar, Bandhgora, P.O. Satanpur, District- Dhanbad (now Bokaro). He further submits that Plot No.15 was the subject matter before this Court in Cr.M.P. No.2730 of 2017, which was allowed vide order dated 04.08.2022 and the entire criminal proceeding with respect the said plot, which was the subject matter before the said petition, including the order taking cognizance was quashed by this Court. He further submits that the President and Secretary of Adarsh Sahkari Grih Nirwan Samiti have filed the said petition.
The submission of the learned counsel for the petitioner has been recorded in paragraph 4 of Cr.M.P. No.2730 of 2017, which is quoted herein below:
“4. Mr. Saurav Arun, learned counsel for the petitioners submits that the petitioner no. 1 is the President and petitioner no. 3 is the Secretary of Adarsh Sahkari Grih Nirwan Samiti. He further submits that the land in dispute is plot nos. 5 and 15 of village Bandhgora, Thana No. 35, P.S. Pindrajora, District-Bokaro which was raiyati land and earlier a dispute was raised between the Forest Department and concerned raiyats of the plot in question for which the Title Suit No. 140 of 1954 was preferred by 11 plaintiffs against the State of Bihar and one of the plaintiff was Shanti Ram Mahtha and the plot nos. 5 and 15 of Khata No. 28 were covered in the said title suit. He further submits that on 24.07.1956 a decree was passed in favour of the plaintiffs of the said title suit in which it was held that the said government notification would not cover plot no. 5 and 15 as private protected forest of Forest Department and as such the right title and the interest of the plaintiffs was maintained over the same. He further submits that the said land was purchased by the Adarsh Sahkari Grih Nirman Samiti from heirs of Shanti Ram Mahtha by registered deed in the year, 1984. He further submits that when the members of the said Samiti were started to construct their house, the Range Officers, Chas Range, Chas has filed a petition under section 144 of the Cr.P.C. registered as Case No. 1701 of 1987 and the same was decided in favour of the Samiti on 12.02.1988. He further submits that again a petition under section 145 of the Cr.P.C. was filed by the Forest Department against the petitioners in which an attachment order was passed and the same was challenged before the Hon’ble Court which was numbered as Criminal Revision No. 27 of 1990 (R) which was decided on 23.05.1995 holding therein that Notification under section 29 of the Act was published, possession of the land would be deemed to have been taken by the Forest Department, cannot be held to be legally sustainable and must be rejected. He further submits that the Range Officer, Chas Range, Chas thereafter filed a land encroachment case before the Land Reforms Deputy Collector, Dhanbad which was numbered as BPLE Case No. 19 of 1988-89 against the Adarsh Sahkari Grih Nirman Samiti and the said case was decided in favour of the said Samiti. He further submits that inspite of these orders Forest Department again issued a notice on 20.11.1992 in the same case i.e. BPLE Case No. 19 of 1988-89 and being aggrieved by the same the Samiti filed a Writ Application numbered as CWJC No. 1232 of 1993 which was finally decided on 16.06.2003 by which notice was quashed by this Court and the case was decided in favour of the petitioners. He further submits that in the said case liberty was provided to the Forest Department to avail remedy but the remedy was not availed and again the Forest Department filed Title Suit No. 11 of 2005 which is still pending. He further submits that this case was instituted by the O.P. No. 2 only on the basis that the land belongs to Forest Department on the basis of notification, but the said notification has already been held by this Court as not legally sustainable and further it was held that the land belongs to the Samiti, inspite of that Forest Department has instituted the present case against the petitioners. He further submits that the learned Munsif, Purulia in T.S. No. 140 of 1954 vide decree dated 30.07.1956 issued the decree in favour of petitioners declaring that the property decreed in schedule no. 1 to 4 have not been constituted into private protected forest land as contemplated under Bihar Forest Act. He further submits that notification under section 29 of the Forest Act is dated 24.05.1958 and Section 30 (b) of the Act provides that notification shall remain in force for 30 years. He further submits that no notification is there under section 30 of the Act.”
Mr. Ravi Prakash, Mr. P.D. Agrawal and Mr. Gautam Rakesh, learned counsel for the State jointly submit that Title Suit are still pending and so far as facts of the order passed in the proceeding in the said petition, has not been denied by the learned counsel for the State.
It is an admitted fact that subject matter of these petitions is Plot No.15 and the submissions made by the learned counsel for the petitioners in Cr.M.P. No.2730 of 2017 are identical in these petitions, which has been argued by Mr. Tiwari, as quoted (supra).
In view of the above submissions of the learned counsel appearing for the parties, the Court has gone through the materials on the record and finds that the land in question was decreed in favour of Shanti Ram Mahtha and the same was purchased by the Samiti from Shanti Ram Mahtha that was subject matter of different proceedings as noted herein above, which has not denied by the learned counsel for the State. Section 29 of the Indian Forest Act read with Section 30(b) of the Act provides that notification shall remain in force for 30 years. Admittedly, there is no notification under Section 30 of the Act.
In view of the above facts, reasons and analysis, the entire criminal proceeding of Complaint Case No.396 of 2018 (Forest) and cognizance order dated 08.01.2019, pending in the court of the learned Judicial Magistrate, 1st Class, Bokaro (in Cr.M.P. No.3031 of 2019), the entire criminal proceeding of Complaint Case No.705 of 2018 and cognizance order dated 19.12.2018, pending in the court of the learned Judicial Magistrate, 1st Class, Bokaro (In Cr.M.P. No.3428 of 2019), the entire criminal proceeding of Complaint Case No.563 of 2018 (Forest) and cognizance order dated 14.12.2018, pending in the court of the learned Judicial Magistrate, 1st Class, Bokaro (in Cr.M.P. No.594 of 2020), the entire criminal proceeding of Complaint Case No.348 of 2018 and cognizance order dated 19.12.2018, pending in the court of the learned Judicial Magistrate, 1st Class, Bokaro (in Cr.M.P. No.628 of 2020) and the entire criminal proceeding of Complaint Case No.1041 of 2018 and cognizance order dated 11.07.2019, pending in the court of the learned Judicial Magistrate, 1st Class, Bokaro (in Cr.M.P. No.631 of 2020) are, hereby, quashed.
Accordingly, these petitions (Cr.M.P. Nos.3031 of 2019, 3428 of 2019, 594 of 2020, 628 of 2020 and 631 of 2020) stand allowed and disposed of.
Pending I.As., if any, also stand disposed of.
Interim orders, if any passed in respective cases, stand vacated.