Radhey Shyam And Others vs State Of U.P.Thr.Prin.Secy. ...
2017 Latest Caselaw 2296 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

								   A.F.R.
 
								Reserved
 

 
Case :- MISC. BENCH No. - 1698 of 2012
 
Petitioner :- Radhey Shyam And Others
 
Respondent :- State Of U.P.Thr.Prin.Secy. Revenue Lucknow And Others
 
Counsel for Petitioner :- Ram Raj,Bhup Chandra Singh
 
Counsel for Respondent :- C.S.C.
 

 
					AND
 
Case :- MISC. BENCH No. - 4242 of 2015
 
Petitioner :- Prabhu Dayal
 
Respondent :- Collector Sultanpur & 2 Ors.
 
Counsel for Petitioner :- Mohammad Aslam Khan
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Sheo Kumar Singh-I,J.

(Delivered by Sheo Kumar Singh-I, J.)

1- By means of filing the present writ petition under Article 226 of Constitution of India, the petitioner has assailed the letter and order dated 1.11.2011 passed by Forest Settlement Officer i.e. opposite party no.-3 and further prayer to issue a writ, order or direction in the nature of certiorari quashing the notifications dated 26.8.1950 and 11.11.1955 issued under Section 4 and 20 of Indian Forest Act contained as Annexure Nos.-12 and 13 of the writ petition. Petitioner has also prayed for issue of a writ, order or direction in the nature of Mandamus commanding the respondents to undertake the proceedings for conferment of rights upon the petitioners in respect of land in question to which, they are entitled in law as a consequence of enforcement and applicability of U.P. Zamindari Abolition and Land Reforms Act, 1950, with further direction to issue a writ in the nature of Mandamus commanding the Collector Sultanpur to maintain the records regarding the land in question and not to expunge the names of the petitioners from revenue records and further not to interfere in peaceful possession of the petitioners over land in dispute.

2- The brief facts giving rise in filing the first writ petition are that the land in dispute is situated in Village Ratanpur Tehsil and District Sultanpur to which, the provisions of Awadh Rent Act 1886 is applicable. It has been narrated by the petitioner that after the enforcement of U.P. Zamindari Abolition and Land Reforms Act, 1950, a new right were conferred upon erstwhile tenants, who were holding the land on the tenancy under the provisions of U.P. Tenancy Act 1939. As per version of the petitioners as narrated in paragraph-11 of the petition, they were recorded over Khatas and plots/land mentioned in the petition but later on in the Khevat for the year 1356-1357 Fasli, Union Government was shown to be as a proprietor of Khevat No.-2 while in Khevat No.-1/2 over area of 543-3-7 was shown to be under the Management of the Forest Department. In subsequent Khataunies prepared in 1359 Fasli, the land which was recorded in the name of Forest Department was separately shown in separate Khatas and it did not comprise any of the plots which the petitioners are claiming to be held by them under tenancy as hereditary tenants. A large area which is entered as a State land in the Management of Forest Department and for which a notification was issued in the year 1950-55 have been shown the land in the management, control and possessory title of Forest Department, are wrong and no opportunity of hearing was given to the petitioners while issuing the notification to acquire the land in favour of the State or the forest and the right title interest of the petitioners have not been extinguished by virtue of operation of Uttar Pradesh Zamindari Act, thus the present petition has been filed to quash the notifications declaring the land as forest land issued in the year 1955 with further relief to record the names of the petitioners on the lands' shown in the writ petition.

3- Similarly in writ petition no.-4242 of 2015 , the petitioner had claimed his right over plot no.-373/2 and 374 situated in Village Ratanpur Tehsil Sadar and District Sultanpur, which were also declared as forest land and in the management and control of Forest Department.

4- Learned Counsel for the respondents while filing the counter affidavit has been submitted that land in dispute is recorded in the name of State Government ( Forest Department) and entries regarding right and title related to plot in dispute has never been conferred in favour of the petitioner.

5- Since both the writ petitions are based on the similar facts thus both the petitioners are decided by common order.

6- Learned Counsel for the petitioners has submitted that previously land in question were recorded in the name of petitioners and during the settlement soyam the land was recorded in Class V. After enforcement of U.P. Tenancy Act, petitioners or predecessor entitled who were then alive were conferred hereditary rights by the operation of law depending upon their existing rights in the land held by them. The petitioners were in possession of land for using the land to agriculture purposes with an exception over small portion of the said land over which abadi has been constructed by them. In khatauni no.-1356 Fasli either the petitioners or their ancestral were recorded as hereditary tenants in Class IV-Ka under the proprietorship of the State Government. In the corresponding Khevat for the year 1356-57 Fasli, Vishwa Nath Singh and Others were recorded as proprietor over area in Khevat no.-1 while in Khevat no.-2 Union Government was shown to be as proprietor, while in Khevat No.-1/2 an area of 453-3-7 was shown to be under Management of Forest Department. In Khatauni no.-1359 Fasli, the petitioners and their ancestral were recorded as tenants under different khatas and the land under the Management of Forest Department was said to be separately recorded.

7- Learned Counsel for the respondents has submitted that the petitioners had admitted in paragraph no.-31 of the petition no.-1 that at the time of enforcement of U.P. Zamindari Abolition and Land Reforms Act, 1950, land was shown to be the property of the State Government and no right title or interest were accrued in favour of the petitioners.

8- On the other hand learned Counsel for the petitioners has submitted that in spite of the fact that the land was cultivatory possession of petitioners, the State authorities or its instrumentalities have not recorded the aforesaid facts in the record of rights maintained for the areas to which U.P. Zamindari Act was applicable. As per averments contained in paragraph-36 of the writ petition the learned Counsel for the petitioners has submitted that the petitioners at the time of commencement of U.P. Tenancy Act 1939 acquired hereditary rights and were so recorded in the revenue record as reflected from Khatauni 1356 Fasli and 1359 Fasli and no proceedings for their ejectment under U.P. Tenancy Act 1939 has ever been undertaken and they have continued to be in cultivatory possession over the land held by them and were also in such cultivatory possession at the time of publication of the notifications under Section 4 and 20 of Forest Act and their rights were never disturbed as they continued to be recorded as hereditary tenants, even after the publication of several notifications.

9- Learned Counsel for the petitioners has further submitted that since the petitioners are continuing to be recorded as hereditary tenants and are in cultivatory possession thereof, they are in any case entitled to continue with the status as hereditary tenants which they have been enjoing throughout. Even if it is found that the Zamindari Abolition Act has not been made applicable to the land in question, the petitioners cannot be deprived of their rights in arbitratory manner without following the procedure established by law and their names cannot be expunged from the record simply because the Forest Settlement Officer want to get their names expunged from the revenue record.

10- The crux of the petition is that the name of the petitioners should be recorded in the revenue records or Khatauni on the area shows in the Khata Forest Department, whereby the Revenue Officers took the view that the notification of the land was issued under Sections 4, 6 and 20 of the Forest Act in which after expiry of time for filing objection in the year 1950-55, the land was declared as reserved forest and the objectors/petitioners did not raised any claim before the forest settlement officers or objections filed by the petitioners were disposed of before the issue of notification. Hence, the application or prayer of the petitioner for making entries incorporating their names in the revenue records cannot be accepted. The Revenue Officers further held that after publication of notification under Section 20 of the Forest Act, the revenue courts had no jurisdiction to delete the name of the forest department. Further the revenue courts have no jurisdiction to take out from the land the Khata of the forest.

11- For better understanding it would be appropriate to quote relevant provisions of U.P. Zamindari Abolition & Land Reforms Act regarding vesting of estates in State and consequences of the vesting which are as follows:-

Section 4- Vesting of estates in the State. - (1) As soon as may be after the commencement of this Act, the State Government may, by notification, declare that, as from a [date] to be specified, all estates situate in Uttar Pradesh shall vest in the State and as from the beginning of the date so specified (hereinafter called the date of vesting), all such estates shall stand transferred to and vest, except as hereinafter provided, in the State free from all encumbrances.

(2) It shall be lawful for the State Government, if it so considers necessary, to issue, from time ta time, the notification referred to in sub-section (1) in respect only of such area or areas as may be specified and all the provisions of subsection (1) shall be applicable to and in the case of every such notification.

12- Section 6- Consequences of the vesting of an estate in the State. - When the notification under Section 4 has been published in the Gazette, then, notwithstanding anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of the date of vesting, ensure in the area to which the notification relates, namely :

(a) all rights, title and interest of all the intermediaries-

(i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries trees (other than trees in village abadi, holding or grove), fisheries, [* * *], tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars and melas (other than hats, bazars and melas held upon land to which Clauses (a) to (c) of sub-section (1) of Section 18 apply; and

(ii) in all sub-soil in such estates including rights, if any, in mines and minerals, whether being worked or not;

shall cease and be vested in the State of Uttar Pradesh free from all encumbrances;

(b) all grants and confirmations of title of or to land in any estate so acquired, or of or to any right or privilege in respect of such land or its land revenue shall, whether liable to resumption or not, determine;

(c) (i) all rents, cesses, local rates and sayar in respect of any estate or holding therein for any period after the date of vesting and which, but for the acquisition would be payable to an intermediary, shall vest in and be payable to the State Government and not to the intermediary and any payment made in contravention of this clause shall not be valid discharge of the person liable to pay the same;

(ii) where under an agreement or contract made before the date of vesting any rent, cess, local rate or sayar for any period after the said date has been paid to or compounded or released by an intermediary the same shall, notwithstanding the agreement or the contract, be re-coverable by the State Government from the intermediary and may without prejudice to any other mode of recovery, be realized by deducting the amount from the compensation money payable to such intermediary under Chapter III;

(d) all arrears of revenue, cesses or other dues in respect of any estate so acquired and due from the intermediary [or an arrear on account of tax on agricultural income assessed under the U.P. Agricultural Income Tax Act, 1948] (U.P. Act III of 1949) for any period prior to the date of vesting shall continue to be recoverable from such intermediary and may, without prejudice to any other mode of recovery, be realized by deducting the amount from the compensation money payable to such intermediary under Chapter III;

(e) all amounts ordered to be paid by an intermediary to the State Government under Sections 27 and 28 of the U.P. Encumbered Estates Act, 1934 (U.P. Act XXV of 1934) and all amounts due from him under the Land Improvement Loans Act, 1883 (U.P. Act XIX of 1883), or the Agricultural Loans, Act, 1884 (U.P. Act XIX of 1884), shall notwithstanding any thing contained in the said enactments, become due forthwith and may, without prejudice to any other mode of recovery provided therefor, be realized by deducting the amount from the compensation money payable to such intermediary under Chapter III;

(f) the interest of the intermediary so acquired in any estate shall not be liable to attachment or sale in execution of any decree or other process of any Court, Civil or Revenue and any attachment existing at the date of vesting or any order for attachment passed before such date shall, subject to the provisions of Section 73 of the Transfer of Property Act, 1882 (IV of 1882), cease to be in force;

(g)(i) every mortgage with possession existing on any estate or part of an estate on the date immediately preceding the date of vesting shall, to the extent of the amount secured on such estate or part, be deemed, without prejudice to the rights of the State Government under Section 4, to have been substituted by a simple mortgage;

(ii) notwithstanding anything contained in the mortgage deed or any other agreement, the amount declared due on a simple mortgage substituted under sub-clause (i) shall carry such rate of interest and from such date as may be prescribed;

(h) no claim or liability enforceable or incurred before the date of vesting by or against suc As to whether h intermediary for any money, which is charged on or is secured by mortgage of such estate or part thereof shall, except as provided in Section 73 of the Transfer of Property Act, 1882 (IV of 1882), be enforceable against his interest in the estate;

(i) all suits and proceedings of the nature to be prescribed pending in any Court at the date of vesting and all proceedings upon any decree or order passed in any such suit or proceeding previous to the date of vesting shall be stayed;

(j) all mahals and their sub-divisions existing on the date immediately preceding the date of vesting and all engagements for the payment of land revenue or rent by a proprietor, under-proprietor, sub-proprietor, co-sharer or lambardar as such shall determine and cease to be in force.

13- Section 8-Contract entered into after August 8, 1946, to become void from the date of vesting. - Any contract for grazing or gathering of produce from land or the collection of forest produce or fish from any forest or fisheries entered As to whether into after the eighth day of August, 1946, between an intermediary and any other person in respect of any private forest, fisheries or land lying in such estate shall become void with effect from the date of vesting.

14- Section 13- Estate in possession of a thekedar. - (1) Subject to the provisions of Section 12 and sub-section (2) of this section a thekedar of an estate or share therein shall, with effect from the date of vesting, cease to have any right to hold or possess as such any land in such estate.

(2) Where any such land was in the personal cultivation of the thekedar on the date immediately preceding the date of vesting, the same shall-

(a) if it was sir or khudkasht of the lessor on the date of the grant of the theka, be deemed for purposes of Section 18, to be the sir or khudkasht of the lessor on the date immediately preceding the date of vesting and the thekedar shall, with effect from the date of vesting, become the asami thereof liable to pay rent at hereditary rates applicable on the date immediately preceding the date of vesting and entitled to hold the land as such for the unexpired period of the theka or for a period of five years from the date of vesting whichever is less;

(b) if it was not sir or khudkasht of the lessor on the date of the grant of the theka and-

(i) its area does not exceed thirty acres, be deemed for purposes of Section 19 to have been held by the thekedar as a hereditary tenant liable to pay rent which shall be equal to the rent calculated at hereditary rates applicable on the date immediately preceding the date of vesting; and

(ii) its area exceeds thirty acres, be deemed to the extent of thirty acres for purposes of Section 19 to have been held as a hereditary tenant as aforesaid and the remainder shall be deemed to be vacant land and the thekedar shall be liable to ejectment therefrom in accordance with the provisions of Section 209.

(3) Notwithstanding any restriction contained in Clauses (a) and (b) of subsection (2), the Collector may, on the application of the thekedar and after such enquiry as may be prescribed, and if he is satisfied that it is in the interest of efficient and successful working of an existing agricultural farm, permit the thekedar to retain land-

(a) if it is land falling under Clause (a) of sub-section (2), for a longer period than five years; and

(b) if it is land falling under Clause (b) of the said sub-section, in excess of thirty acres :

15- Provided that the thekedar shall not be entitled to retain the land so allowed beyond the term of the theka, and he shall, in the case of any area in excess of thirty acres allowed to him under Clause (b), be an asami thereof on behalf of the Gaon Sabha and liable to pay rent at hereditary rate applicable on the date immediately preceding the date of vesting.

(4) To every application under sub-section (3) the lessor and the Gaon Sabha concerned shall be made parties.

Learned counsel for the petitioner and learned counsel for the respondent has also raised certain legal issues for determination in these writ petitions which are as follows:-

(i) As to whether the revenue courts can hear any objection regarding the claim of land which has been declared as reserved forest.

(ii) As to whether Section 27 A of Indian Forest Act, 1927, creates a bar of consideration of claim which has been declared as forest reserve.

(iii) Whether any land forming part of holding of any tenure holder can be declared as reserve forest under the provisions of Indian Forest Act.

16- Before considering the issues which arise in the writ petition, it is necessary to look into the scheme and the nature of proceeding which are holding under the provisions of the Indian Forest Act, 1927, The Forest Act. 1927, was enacted to consolidate the law relating to forest, the transit of forest-produce and other connected matters. Chapter 11 of the Act relates to reserved forest. Section 3 provides the power to reserve forests. This Section provides that the State Government may constitute any forest land or waste land which is the property of Government or over which the Government has proprietary rights, a reserved forest. Section 3 is quoted as under:

17- "Section 3--Power to reserve forests.- The State Government may constitute any forest-land or waste land 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, a reserved forest in the manner hereinafter provided."

Section 3 as in its application to the State of Uttar Pradesh, has been substituted by U.P. Act No. XXIII of 1965 with effect from 23.11.1965, to following effect:

"3. Power to reserve forests.--The State Government may constitute any forest land or waste land or any other land (not being land for the time being comprised in any holding or grove or in any village abadi) which is the property of the 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, a reserve forest in the manner hereinafter provided.'

Explanation.--The expression 'holding' shall have the meaning assigned to, it in the U.P. Tenancy Act, 1939, the expression 'village abadi' shall have meaning assigned to it in the U.P. Village Abadi Act. 1947."

Section 4 provides that whenever it has been decided to constitute any land a reserved forest, the State Government shall Issue a notification in the Official Gazette. Section 4 is quoted as below :

"Section 4 : Notification by State Government---(1) Whenever it has been decided to constitute any land a reserved forest, the State Government shall issue a notification in the Official Gazette :

(a) declaring that it has been decided to constitute such land a reserved forest ;

(b) specifying as nearly as possible, the situation and limits of such land ; and

(c) appointing an officer (hereinafter called "the forest settlement officer") to inquire into and determine the existence, nature and extent of any rights alleged to exist in favour of any person in or over any land comprised within such limits, or in or over any forest produce, and to deal with the same as provided in this Chapter.

Explanation---For the purpose of Clause (b), it shall be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries.

(2) The officer appointed under Clause (c) of Sub-section (1) shall ordinarily be a person not holding any forest office except that of forest settlement officer.

(3) Nothing in this Section shall prevent the State Government from appointing any number of officers not exceeding three, not more than one of whom shall be a person holding any forest office except as aforesaid, to perform the duties of a forest settlement officer under this Act."

18- Section 5-Bar of accrual of forest-rights.-After the issue of a notification under section 4, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf.

State Amendments

Uttar Pradesh,- For section 5, substitute the following section, namely:-

"5. Bar of accrual of forest rights.- After the issue of the notification under Section 4 no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or a contract in writing made or entered into by or on behalf of the government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land, nor any tree therein felled, girdled, lopped, tapped, or burnt, or its bark or leaves stripped off, or the same otherwise damaged, nor any forest produce removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf.

19- Section 6-Proclamation by Forest Settlement-officer.-When a notification has been issued under section 4, the Forest Settlement-officer shall publish in the local vernacular in every town and village in the neighbourhood of the land comprised therein, a proclamation

(a) specifying, as nearly as possible, the situation and limits of the proposed forest;

(b) explaining the consequences which, as hereinafter provided, will ensue on the reservation of such forest; and

(c) fixing a period of not less than three months from the date of such proclamation, and requiring every person claiming any right mentioned in section 4 or section, 5 within such period either to present to the Forest Settlement-officer a written notice specifying or to appear before him and state, the nature of such right and the amount and particulars of the compensation (if any) claimed in respect thereof.

20- "Section 7 : Inquiry by forest settlement officer.--The forest settlement officer shall take down in writing all settlements made under Section 6, and shall at some convenient place inquire into all claims duly preferred under that Section, and the existence of any rights mentioned in Section 4 or Section 5 and not claimed under Section 6 so far as the same may be ascertainable from the records of Government and the evidence of any person likely to be acquainted with the same.

Section 8 is regarding power of the forest settlement officer. Section 8 is material since it provides that the forest settlement officer will have all the powers of the civil court in the trial of the suit. Section 9 is with regard to extinction of rights. Sections 8 and 9 are extracted below :

"Section 8--Power of forest settlement officer.--For the purpose of such inquiry, the forest settlement officer may exercise the following powers, that is to say :

(a) power to enter, by himself or any officer authorised by him for the purpose, upon any land, and to survey, demarcate and make a map of the same : and

(b) the powers of a civil court in the trial of the suit."

21- "Section 9-Extinction of rights -Rights in respect of which no claim has been preferred under Section 6, and of the existence of which no knowledge has been acquired by inquiry under Section 7, shall be extinguished, unless before the notification under Section 20 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 6."

22- Section 11 of the Act provides that the forest settlement officer shall pass an order admitting or rejecting the claim to a right in or over any land. Sub-section (2) of Section 11 provides that if claim is admitted in whole or in part then he will either exclude such land from limit of the proposed forest or come to an agreement with the owner thereof for the surrender of his rights, or proceed to acquire such land in the manner provided by the Land Acquisition Act, 1894. Section 17 provides for right of appeal to a claimant against the order of forest settlement officer to such officer of revenue department, of rank not lower than that of Collector as the State Government by notification in the Official Gazette, appoint, to hear appeals from such orders. This Section also contemplates creation of a Court namely forest court. Section 20 provides for issue of notification declaring reserved forest. Section 20 is extracted below :

23- Section 17-Appeal from order passed under section 11, section 12, section 15 or section 16.- Any person who has made a claim under this Act, or any Forest-officer or other person generally or specially empowered by the State Government in this behalf, may, within three months from the date of the order passed on such claim by the Forest Settlement-officer under section 11, section 12, section 15 or section 16, present an appeal from such order to such officer of the Revenue Department of rank not lower than that of a Collector, as the State Government may, by notification in the Official Gazette, appoint to hear appeals from such orders:

Provided that the State Government may establish a Court (hereinafter called the Forest Court) composed of three persons to be appointed by the State Government, and when the Forest Court has been so established, all such appeals shall be presented to it.

17 Appeal from order passed under section 11, section 12, section 15 or section 16- Any person who has made a claim under this Act, or any Forest officer or other person generally or specially empowered by the State Government in this behalf may, within three months from the date of the order passed on such claim by the Forest Settlement officer under Section 11, section 12, section 15 or section 16, present an appeal from such order to the District Judge."

24- Section 18-Appeal under section 17.(1) Every appeal under section 17 shall be made by petition in writing, and may be delivered to the Forest Settlement-officer, who shall forward it without delay to the authority competent to hear the same.

(2) If the appeal be to an officer appointed under section 17, it shall be heard in the manner prescribed for the time being for the hearing of appeals in matters relating to land-revenue.

(3) If the appeal be to the Forest Court, the Court shall fix a day and a convenient place in the neighbourhood of the proposed forest for hearing the appeal, and shall give notice thereof to the parties, and shall hear such appeal accordingly.

(4) The order passed on the appeal by such officer or Court, or by the majority of the members of such Court, as the case may be, shall, subject only to revision by the State Government, be final.

State Amendments

Uttar Pradesh- For section 18, substitute the following section, namely:-

"18 Appeal under Section 17- (1) Every appeal under section 17 shall be made by petition in writing and may be delivered to the Forest Settlement-officer, who shall forward it without delay to the District Judge.

(2) The District Judge may, after giving to the parties an opportunity of being heard, confirm, set aside or modify the order under appeal, or remand the case to the Forest Settlement -officer with such directions as he thinks fit.

(3) During the pendency of appeal the District Judge may, for sufficient cause, stay, on such terms, if any, as he thinks fit, the operation of the order appealed from and pass any incidental or consequential order.

(4) The order passed on appeal shall, subject to the provision of section 22, be final."

25- Section 20-Notification declaring forest reserved.-(1) When the following events have occurred, namely:-

(a) the period fixed under section 6 for preferring claims have elapsed and all claims (if any) made under that section or section 9 have been disposed of by the Forest Settlement-officer;

(b) if any such claims have been made, the period limited by section 17 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate officer or Court; and

(c) all lands (if any) to be included in the proposed forest, which the Forest Settlement-officer has, under section 11, elected to acquire under the Land Acquisition Act, 1894 (1 of 1894), have become vested in the Government under section 16 of that Act,

the State Government shall publish a notification in the Official Gazette, specifying definitely, according to boundary-marks erected or otherwise, the limits of the forest which is to be reserved, and declaring the same to be reserved from a date fixed by the notification.

(2) From the date so fixed such forest shall be deemed to be a reserved forest.

26- State Amendments: Uttar Pradesh- After section 20, insert the following section, namely:-

"20 A. Certain forest land or waste land when deemed to be reserved forest.- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, including the Merged States (Laws) Act, 1949 or the U.P. Merged States (Application of Laws) Act, 1950, or any order issued thereunder, any forest land or waste land in a merged State which immediately before the date of merger (hereinafter in this section referred to as the said date)-

(a) was deemed to be reserved forest under any enactment in force in that State, or

(b) was recognized or declared by the Ruler of such State as a reserved forest under any law (including any enactment, rule, regulation, order, notification, custom or usage having the force of law) for the time being in force, or

(c) was dealt with a reserved forest in any administrative report or in accordance with any working plan or register maintained and acted upon under the authority of the Ruler.

Shall be deemed to be and since the said date to have continued to be a reserved forest subject to the same rights or concession, if any, in favour of any person as were in force immediately before the said date.

Explanation I.- A certificate of the State Government or of any officer authorized in his behalf to the effect that a report, working plan or register was maintained and acted upon under the authority of the Ruler shall be conclusive evidence of the fact that it was so maintained and acted upon.

Explanation II.- Any question as to the existence or extent of any right or concession referred to in this sub-section shall be determined by the State Government, whose decision, given after such enquiry, if any, as it thinks fit, shall be final.

Explanation III.- ''Working plan' includes any, plan scheme, project, map, drawings and lay-outs prepared for the purpose of carrying out the operations in course of the working and management of forests.

(2) No right shall be deemed to have been acquired on or after the said date in or over any land mentioned in sub-section (1) except by succession or under a grant or contract in writing made or entered into by or on behalf of the State Government or some person in whom such right was vested immediately before the said date and no fresh clearings since made for cultivation or for any other purpose (except clearings made in accordance with any concessions granted by the Ruler and in force immediately before the said date or in accordance with the rules made by the State Government in this behalf since the said date) shall be recognized as or deemed to be lawful, anything contained in this Act or any other law for the time being in force notwithstanding.

(3) The State Government may within five years from the commencement of the Indian Forest (Uttar Pradesh Amendment) Act, 1965, revise any arrangement of the nature specified in section 22, and pass any incidental or consequent, order, including any direction to the effect that any of the proceedings specified in the foregoing provisions of this Chapter be taken.

(4) In relation to any land mentioned in sub-section (1), the references in sections 24 and 26-

(a) to section 23 shall be construed as references to sub-section (2); and

(b) to rights admitted, recorded or continued under section 14 or section 15 shall be construed as references to rights of pasture or to forest produce admitted, recorded or continued in or under the corresponding enactment, law or document referred to in sub-section (1).

(5) Without prejudice to any action that may be or may have been taken for ejectment, vacation of encroachment or recovery of damages in respect of any unauthorized occupation of or trespass over any land mentioned in sub-section (1), or for seizure, confiscation, disposal or release (on payment of value or otherwise) of any forest produce in respect of which any forest offence has been committed in relation to such land or of any tools, boats, carts, or cattle used in committing such offence, nothing in this section shall be deemed to authorize the conviction of any person for any act done before the commencement of the Indian Forest (Uttar Pradesh Amendment) Act, 1965, which was not an offence before such commencement.

27- Section 23- No right acquired over reserved forest, except as here provided.-No right of any description shall be acquired in or over a reserved forest except by succession or under a grant or contract in writing made by or on behalf of the Government or some person in whom such right was vested when the notification under section 20 was issued.

28- Section 24- Rights not to be alienated without sanction.-(1) Notwithstanding anything contained in section 23, no right continued under clause (c) of sub-section (2) of section 15 shall be alienated by way of grant, sale, lease mortgage or otherwise, without the sanction of the State Government:

Provided that, when any such right is appendant to any land or house, it may be sold or otherwise alienated with such land or house.

(2) No timber or other forest-produce obtained in exercise of any such right shall be sold or bartered except to such extent as may have been admitted in the order recorded under section 14.

29- Section-26 Acts prohibited in such forests. (1) Any person who

(a) makes any fresh clearing prohibited by section 5, or

(b) sets fire to a reserved forest, or, in contravention of any rules made by the State Government in this behalf, kindles any fire, or leaves any fire burning, in such manner as to endanger such a forest;

or who, in a reserved forest

(c) kindles, keeps or carries any fire except at such seasons as the Forest-officer may notify in this behalf,

(d) trespasses or pastures cattle, or permits cattle to trespass;

(e) causes any damage by negligence in felling any tree or cutting or dragging any timber;

(f) fells, girdles, lops, or bums any tree or strips off the bark or leaves from, or otherwise damages, the same;

(g) quarries stone, bums lime or charcoal, or collects, subjects to any manufacturing process, or removes, any forest-produce;

(h) clears or breaks up any land for cultivation or any other purpose;

(i) in contravention of any rules made in this behalf by the State Government hunts, shoots, fishes, poisons water or sets traps or snares; or

(j) in any area in which the Elephants Preservation Act, 1879 (6 of 1879), is not in force, kills or catches elephants in contravention of any rules so made, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid.

(2) Nothing in this section shall be deemed to prohibit

(a) any act done by permission in writing of the Forest-officer, or under any rule made by the state Government; or

(b) the exercise of any right continued under clause (c) of sub-section (2) of section 15, or created by grant or contract in writing made by or on behalf of the Government under section 23.

(3) Whenever fire is caused wilfully or by gross negligence in a reserved forest, the State Government may (notwithstanding that any penalty has been inflicted under this section) direct that in such forest or any portion there of the exercise of all rights of pasture or to forest produce shall be suspended for such period as it thinks fit.

Section 27A has been added by the U.P. Act No. 23 of 1965 which reads as under :

'Section 27A--Finality of orders, etc.--No act done, order made or certificate issued in exercise of any power conferred by or under this Chapter shall, except as herein before provided, be called in question in any Court."

30- The scheme of the Forest Act, is evident from the various provisions as referred above, clearly proved that in the proceeding beginning by notification under Section 4 all claims regarding land included in the notification are adjudicated by an authorised officer. All claims to the land can be made and adjudicated. Section 8 gives all powers of the civil courts to the forest settlement officer available in trial of the suits. There is appeal provided under Section 17 to . higher forum. The notification under Section 4 is published in Official Gazette appointing forest settlement officer to inquire and determine any right in or over any land. Forest Settlement Officer also issues a proclamation in every town and village in the neighbourhood to make the proceedings known to all concerned. The adjudication of all claims to the land is by a special court with right of appeal. The enquiry regarding claims is for the purpose of finding out as to whether the land in question can be declared as reserved forest or it cannot be declared reserved forest due to the rights or claims of claimants and the provision further contemplates that even if right or claim of claimants has been established there is procedure for coming to agreement with the owner for surrender of his right or to acquire such land in the manner provided by the Land Acquisition Act. The provision of the Act contemplates extinction of all rights regarding land included in the reserved forest.

31- Section 27A has been added giving finality to the orders passed in proceedings under the Indian Forest Act and Section creates express bar by saying that the order made or certificate issued in exercise of powers conferred in Chapter II shall not be called to question in any Court. While considering the question of exclusion of jurisdiction of the civil court, Constitution Bench of the Apex Court in Dhulabhai etc. v. State of Uttar Pradesh and Anr., MANU/SC/0157/ 1968MANU/SC/0157/ 1968 : AIR 1969 SC 78 has laid down principle for determination regarding exclusion of jurisdiction. It was laid down in paragraph 32 (1) at page 89 as under :

"Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure."

32- The Apex Court had occasion to consider the aforesaid controversy in State of U.P. v. Deputy Director of Consolidation and Ors. 1996 All LJ 1393 (SC). In the aforesaid case before the Apex Court also, the land in dispute was notified as reserved forest under Section 20 of the Forest Act. Before the consolidation courts, the claimants claimed sirdari right and asserted that the land was Illegally subjected to be proceeding under the Forest Act and the notification declaring the land as reserved forest was illegal. The consolidation courts accepted objection of the claimants and allowed their objections. The writ petition was dismissed by the High Court against which an appeal was filed before the Apex Court. After examining the nature of proceedings under the Forest Act, the Apex Court laid down in paragraph 10 :

33- "10. It is thus obvious that the forest settlement officer has the powers of a civil court and his order is subject to appeal and finally revision before the State Government. The Act is complete Code in itself and contains elaborate procedure for declaring and notifying a reserve forest. Once a notification under Section 20 of the Act declaring a land as reserved forest is published, then all the rights in the said land claimed by any person come to an end and are no longer available. The notification is binding on the consolidation authorities in the same way as a decree of the civil court. The respondents could very well file objections and claims including objection regarding the nature of the land before the forest settlement officer. They did not file any objection or claim before the authorities in the proceedings under the Act. After the notification under Section 20 of the Act, the respondents could not have raised any objection qua the said notification before the consolidation authorities. The consolidation authorities were bound by the notification which had achieved finality."

The Apex Court in the aforesaid case has held that the respondents could not have raised any objection qua the notification under Section 20 before the consolidation authorities.

34- In Maharaja Sir Pateshwari Prasad Singh of Balrampur. Dharam Karva Nidhi v. State of U.P. through Executive Engineer, Irrigation Division. Balrampur and Ors. 1979 RD 142 the learned single Judge took the view that if the rights are adjudicated by the forest settlement officer, those findings by a competent tribunal are binding in the consolidation/revenue proceedings. It was held at page 145 :

"In view of the fact that rights of the petitioner were adjudicated as against the State by the forest settlement officer, whose findings were affirmed in appeal, the said findings being findings by a competent tribunal, the same had a binding effect. The said findings will also be binding even in consolidation proceedings. If the rights of the parties have been decided under the Forest Act then this finding will be binding between the parties before the consolidation authorities as they were also to decide the very same thing which was already decided. Section 11, C.P.C., as such, will not apply, but general principles of res-judicata will apply in respect of the findings recorded by the forest settlement officer which. In any view, is a tribunal of competent jurisdiction and the consolidation authorities are bound by it."

35- The Apex Court in State of U.P. v. Deputy Director of Consolidation (supra) laid down that forest settlement officer having the power of the civil courts and his orders being subject to appeal and revision are final and, once notification under Section 20 of the Forest Act has been issued declaring the land as reserved forest it is not open to raise objection before the consolidation authorities qua the said notification. Apex Court having laid down in 1996 ALJ 1393 held that the consolidation authorities were bound by the notification issued under Section 20 of Forest Act which have achieved finality. Adjudication by forest settlement officer regarding the rights of a claimant are final and cannot be reopened by consolidation authorities otherwise there may be two conflicting judgments on the same issue which has never been the intention of the law. The decision by the forest settlement officer cannot be said to be judgment coram non judice nor it can be said that the Judgments of the forest settlement officer are nullity nor it can be said that the said authority had no jurisdiction to determine about the nature of land included in the notification.

36- In view of the above discussion with regard to question No. 1, it is held that the revenue/consolidation courts cannot entertain a claim with regard to land which is covered by notification under Section 20 of Forest Act, 1927, and with regard to question No. 2 it is held that the Section 27A of the Forest Act creates express bar for adjudication of claim regarding reserved forest in any subsequent proceedings.

37- The third question which arises on the submission of the counsel for the petitioner that the land included in holding of a tenure-holder cannot be declared as reserved forest and the notifications under the Forest Act are without jurisdiction. has next to be considered. As noted above, the Section gives power to the State Government to constitute any forest land or waste land which is the property of the Government or over which the Government has proprietary right as the reserved forest. Section 4 contemplates issue of notification with regard to land which is to be declared as reserved forest. Emphasis has been laid with regard to amended provision of Section 3 as substituted by the U.P. Act, 23 of 1965, on the basis of the amended definition, it has been submitted that the land which is comprised in any holding or grove or in any village abadi cannot be declared as reserved forest. The Division Bench of this Court in Om Singh and Ors. v. State of U.P. and Ors. 1980 ALJ 78 summary of cases (77), had considered the provisions of Forest Act, 1927, including amended Section 3 of Forest Act. The Division Bench in the aforesaid case has held that even according to the amended definition, the third category of land, namely, "or any other land not being land for the time being comprised in any holding or any village abadi" does not control the first two categories, namely, forest land or waste land Section 3 covers forest land and waste land irrespective of whether the same comprise in a holding or not. The forest land or waste land. If it is comprised in a holding, can always be declared as reserved forest exercising the powers under Section 3. The provision of Section 3 of the Forest Act cannot read to the effect that a forest land or waste land included in any holding cannot be declared reserved forest. The said interpretation will run contrary to the object of Forest Act. A tenure-holder may have a forest land or waste land in his holding but if the said holding is to be excluded from declaration of reserved forest, the same will become beyond the power of the State to declare it reserved forest. The provision of Section 11 of Forest Act which contemplates that the land included under Section 4, even if it belongs to a claimant, can be acquired under Land Acquisition Act, clearly contemplates that the forest land or waste land included in the holding of tenure-holder can also be included in reserved forest.

38- The word "forest land" has not been defined under the Forest Act. The definition of forest land was added by Section 38 (b) by U.P. Act No. 23 of 1965. Section 38A (b) defines forest and Sub-section (c) defines forest land which are quoted below :

"Section 38A (b) "forest" means a tract of land covered with trees, shrubs, bushes or woody vegetation whether of natural growth or planted by human agency, and existing or being maintained with or without human effort, or such tract of land on which such growth is likely to have an effect on the supply of timber, fuel, forest produce, or grazing facilities, or on climate, stream-flow, protection of land from erosion, or other such matters and shall include :

(i) land covered with stumps of trees of a forest;

(ii) land which is part of a forest or was lying within a forest on the first day of July, 1952 ;

(iii) such pasture land, waterlogged or cultivable or non-cultivable land, lying within, or adjacent to, a forest as may be declared to be a forest by the State Government ;

(c) "forest land" means a land covered by a forest or intended to be utilised as a forest."

39- The definition of word "forest" is very wide which also includes a tract of land - covered with trees, shrubs, bushes or woody vegetation whether of natural growth or planted by human agency. Section 38A (b) (iii) further clarifies that cultivable or non-cultivable land, lying within, or adjacent to, a forest may be declared to be a forest by the State Government. The word "claimant" has also been defined in Section 38A (a) which is extracted below :

"(a) "Claimant" as respects any land means a person claiming to be entitled to the land or any interest therein acquired, owned, settled or possessed or purported to have been acquired, owned, settled or possessed whether under, through or by any lease or licence executed prior to the commencement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, or under and in accordance with any provision of any enactment. Including the said Act."

41- The word "forest" came for consideration before the Apex Court in T.N. Godauarman Thirumulkpad v. Union of India and Ors., MANU/SC/0278/1997MANU/SC/0278/1997 : (1997) 2 SCC 267. The Apex Court said that the word 'forest' must be understood according to its dictionary meaning and will not only include forest as understood in the dictionary sense but also any area recorded as the forest in the Government record irrespective of the ownership. In paragraph 4. It was laid down by the Apex Court :

"4. ..... 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 20(1) 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."

Thus, if any area of land is in nature of forest and is recorded in the tenure of any tenure-holder or in the name of intermediary/proprietor thekedar (as before abolition of zamindari), the land can be declared as reserved forest irrespective of the ownership of land. Under Indian Forest Act, 1927, power is given to declare the forest land/waste land as reserved forest irrespective of its ownership. Thus, even if forest land or waste land is included in a tenure-holder's tenure, there is no prohibition in any law from declaring the said land as forest land. The third category apart from forest land and waste land which has been added by the U.P. Act 23 of 1965, i.e., any other land (not being land for the time being comprised in any holding or grove or in any village abadi] refers to any other land other than forest land or waste land. Thus, if the land is neither forest lend nor waste land, the same cannot be declared as reserved forest if it is comprised in any holding or grove or in village abadi Thus, in fact the U.P. Act 23 of 1965 added one more category of land which can be declared apart from forest or waste land. The scope of Section 3 as applicable in U.P. after U.P. Act 23 of 1965 is wider than the original Section 3 of the Forest Act. This view has already been expressed by the Division Bench in Om Singh and Ors. v. State of U.P. and Ors. 1980 AlJ. 78 summary of cases (73).

42- From the above discussion, it is clear that forest land or waste land included in holding of a tenure-holder can also be declared as reserved forest and there is no prohibition even in amended Section 3 vide U.P. Act 23 of 1965. The prohibition which has been created by amended Section 3 is with regard to only any other land not being land for time being comprised in any holding or grove or in any village abadi. The words' not being land for the time being comprised in any holding or grove or any village abadi do not control the word forest land or waste land used in Section 3. A Constitution Bench of the Apex Court considered the provisions of Indian Forest Act, 1927, in Mahendra Lal Jain v. State of Uttar Pradesh and Ors., MANU/SC/0083/1962MANU/SC/0083/1962 : AIR 1963 SC 1019. The Apex Court laid down in paragraph 29 as under :

43- "29. It is next urged that even if Sections 38A to 38C are ancillary to Chapter II, they would not apply to -the petitioner's land, as Chapter II deals inter alia with waste land or forest land, which is the property of the Government, which is dealt with under Chapter V. That is so. But unless the petitioner can show that the land in dispute in this case is his property and not the property of the State. Chapter II will apply to it. Therefore, the land in dispute vested in the State under Section 6 of the Abolition Act and became the property of the State. It is however, contended on behalf of the petitioner that if he is held to be a Sirdar in proper proceeding, the land would be his property and therefore, Chapter V-A, as originally enacted, if it is ancillary to Chapter II would not apply to the land in dispute. We are of opinion that there is no force in this contention. We have already pointed out that under Section 6 of the Abolition Act all property of intermediaries including the land in dispute vested in the State Government and became its property. It is true that under Section 18, certain lands were deemed to be settled as holder of land lands, but it is clear that after land vests in the State Government under Section 6 of the Abolition Act, there is no provision therein for divesting of what has vested in the State Government. It is, however, urged on behalf of the petitioner that he claims to be the proprietor of this land as a bhumidhar, or Sirdar because of certain provisions in the Act. There was no such proprietary right as bhumidhari or Sirdar right before the Abolition Act. The Abolition Act did away with all proprietary rights in the area to which it applied and created three classes of tenure by Section 129 ; bhumidhar, sirdar and asami, which were unknown before. Thus, bhumidhar, sirdar and asami are all tenure-holders under the Abolition Act and they hold their tenure under the State in which the proprietary right vested under Section 6.

44- Learned Counsel for the respondents has further submitted that land measuring 477.92 acre of village Ratanpur, Wallipur, Kasba Sultanpur, Pargana Barausa, Tehsil Sadar, Sultanpur was notified under Section 4 of the Indian Forest Act 1927 on 26.8.1950 to declare the said land as reserve forest and thereafter , after completing all the required formalities, final notification under Section 20 of the Indian Forest Act, 1927 was issued on 11.11.1955 and the said land was declared as reserve forest w.e.f. 15th December, 1955. The land in question is in possession of the Government ( Forest Department). It is further submitted that notification under Section 4 of the Indian Forest Act was issued on 26.8.1950 to declare 477.92 acre land as reserve forest including the petitioners land of village Ratanpur Gata No.-27, 147ka, 128/1, 332B, 333B, 360Ka, 307B, 310Ka, 332, 311, 308, 362, 363, 383, 373, 374, 377, 383 and thereafter, after completing all the required formalities, notification under Section 20 of the Indian Forest Act, 1927 was issued. It is further submitted that aforesaid gatas has already been acquired of village Ratanpur in 1947. The petitioners or their ancestor ought to have filed their objections after notification issued under Section 4 of the Indian Forest Act 1927, after such a long time, the writ petition is not maintainable. No right or title exists in favour of the petitioner. It is further submitted that land in dispute is recorded in khatauni as Non Zamindari Act Mohal Rajya Sarkar Forest Varg-4.

45- Learned Counsel for the respondents has submitted that petitioner by forged entry in the revenue record entered the name of Maurishi Kashtkar and when the department of forest came to know about this fact, a case was filed before the Sub Divisional Magistrate, Sultanpur as Case No.-66/71 under Section 33/39 of the Land Revenue Act and the Sub Divisional Magistrate, Sultanpur in case no.-66 by order dated 23.9.2003 directed to delete the name of deceased khatedar Sharda son of Ram Sunder, resident of Ratanpur in 1408 fasli from non Z.A. and directed to enter the name of the Government ( Forest department). Similarly case no.-71, the Sub Divisional Magistrate directed by order dated 25.11.2003 to delete the name of Late Smt. Shivpati wife of widow Ram Shanker, resident of Ratanpur from non Z.A. Khatauni of Khata No.-5 and directed to enter the name of the Government ( Forest).

46- Learned Counsel for the petitioner while submitting the rejoinder affidavit has submitted that notification under Section 4 was never notified or Forest Settlement Officer has not made any enquiry and the land under dispute was never declared as forest reserve. It has further been narrated that the provisions of Section-20 of Forest Act were not complied with and thus impugned notifications are arbitrary, illegal and requires to be quashed.

47- Learned Counsel for the respondents has submitted that a regular suit no.-262/2000 Mahadeo and Others Versus State of U.P. was filed by some of the petitioners in the Court of Civil Judge Senior Division Sultanpur for declaration of right title in favour of the petitioners which was disposed of by the trial court vide judgment and order dated 22.7.2009 and the suit filed by the petitioners was dismissed. The learned trial court after considering the evidence on record came to the conclusion that the petitioner/plaintiff , failed to establish their case and they have no right or title with regard to the land in dispute. The trial court came to the conclusion that the disputed land was devolved in the forest department on 26.8.1950 free from all encumbrances. The aforesaid judgment and order was challenged by way of filing civil appeal no.-46 of 2009 which has been finally decided by order dated 31.5.2011 and have been dismissed. A perusal of the record reveals that vide gazette notification dated 26.8.1950 issued under Section 4 of the Indian Forest Act 1927 with regard to 477.22 acres land of village Ratanpur, Valipur Kasba Sultanpur Sadar District Sultanpur, was issued and after completing all legal formalities of Section 3 to 19 of the Forest Act by the forest settlement officer. By gazette notification dated 11.11.1955, the aforesaid land was declared as reserved forest from 15.12.1955 in which the land in question was also included.

48- Learned Counsel for the petitioner has submitted that land which is being claimed by petitioners comprised in there holding and thus cannot be declared as forest land by means of notification in the year 1950-55.

49- Learned Counsel for the respondents has submitted that by virtue of the operation of Zamindari Abolution Act, the land is vested in the State Government free from all encumbrances. Further under the Indian Forest Act 1927 the same was proposed to be reserved as forest and necessary notification was issued by the State Government and after decision of settlement, hence the same was notified in the official gazette and at present the disputed land including vast area is now reserved forest and incorporated in the revenue records as the property of the State Government under the Management of reserved forest.

50- Learned Counsel for the respondents has also submitted that certain wrong entries were made by means of forgery and after the knowledge of the concerned department a case was filed by the competent Magistrate which was decided by the order dated 23.9.2003 and a direction was issued to correct the entries of the revenue records but in the meantime on an application moved by the petitioners in writ petition no.-1698 (MB) of 2012, an interim order was passed and the same was not corrected in revenue records.

51- Learned Counsel for the petitioners has based his arguments on certain information received under R.T.I. Act which has been contradicted by the arguments advanced by the learned Counsel for the respondents and the matter was finally decided by the concerned officer vide order dated 18.1.003 in which it has been found that under Section 30 Sub -Clause 3 (5) no hereditary right can be accrued on the forest land. Forest Settlement Officer vide his letter dated 1.11.2011 communicated Sub Divisional Magistrate concerned for correction of the name which has been entered in the revenue record in column -IV.

52- It is further argued that village Ratanpur has not been notified in the official gazette while the name of Ratanpur is also mentioned in the government notification.

53- Nothing was brought on record by the petitioners to show that as to what right he is having over the land in dispute and since sirdari rights were not conferred upon the petitioners the land in dispute continued to be recorded in the name of the State Government and later on it was declared as reserve forest. It has further been argued that the petition suffers from delay and laches in as much as land was declared as forest reserved in the year 1950-55 and the petition has been filed after a gap of approximately 60 years. A perusal of provisions of Section 1(3) read with Section 2(1)(c) of U.P. Zamindari Act demonstrates that the act came into force at once except in the area mentioned in Clause -A to F of Sub Section-1 of Section 2. Sub Section-1(c) of Section-2 provides that the State Government may by notification in the gazette apply the whole or any provisions of the U.P. Act No.-1 of 1951 to any of the following area or estates subject to exception or modification not effecting the substance as circumstances of the case may require the areas held or occupied for public purposes or work of public utility and since the land has already been notified as forest land and subsequently as reserved forest vide notification dated 11.11.1955 as well as the Zamindari Act in respect of same was not abolished thus non Zamindari Khatauni was being issued in those areas.

54- Since the land in dispute is a forest land and keeping in view of the provisions contained under Section 1(3) and Section 2(1)(c) of U.P. Zamindari Act, Zamindari in respect of the land in dispute was not abolished as such the question of the petitioners being Sirdar of the said land and subsequently becoming the bhumidhar with non transferable right does not arise. A vast area which is more than 477 acres is involved which is not claimed only by the petitioners but also said to be claimed by other persons thus it is also alleged by the respondents that the rights which can be decided by the revenue authorities or by forest settlement, officer or by court of competent jurisdiction cannot be agitated and decided by means of writ filed under Section 226 of Constitution of India since it is not a Public Litigation Interest petition.

55- Learned Counsel for the respondents has further submitted that once the land has been acquired by the State , it vests in the State free from all encumbrances. Further notification and declaration as made by the State Government in the year 1950-55 cannot be challenged at such belated stage.

56- A Constitution Bench of the Hon'ble Supreme Court, in Aflatoon & Ors. Vs. Lt. Governor, Delhi & ors., AIR 1974 SC 2077, has observed as under:-

"...... to have sat in fence and allowed the government to complete the acquisition on the basis that notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on the grounds which were available to them at the time when the notification was published, would be putting a premium of dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioner."

57- Same view has been taken by the Hon'ble Supreme Court in State of Mysore Vs. V. K. Kangan, AIR 1975 SC 2190, wherein it was observed that respondent was not entitled to challenge the validity of Section 4 Notification after an unreasonable lapse of time. If public notice, as required by Section 4 of the Act, was not given and that would per se vitiate the notification under Section 4, the person interested should have challenged its validity within a reasonable time of the publication of the notification under Section 4 of the Act.

58- The issue of delay in filing the writ petition was considered by the Hon'ble Apex Court in Smt. Sudama Devi Vs. Commissioner & ors., AIR 1983 SC 653, wherein the Apex Court has observed as under:-

"There is no period of limitation prescribed by any law for filing the writ petition under Article 226 of the Constitution. It is, in fact, doubtful whether any such period of limitation can be prescribed by law. In any event, one thing is clear and beyond doubt that no such period of limitation can be laid down either under the rules made by the High Court or by practice. For every case, it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as period of limitation. There may be cases where even short delay may be fatal while there may be cases where even a long delay may not be evidence of laches on the part of the petitioner."

59- In State of Tamil Nadu Vs. L. Krishnan, AIR 1996 SC 497, the Apex Court held that "the delay in challenging the notification was fatal and the writ petitions were liable to be dismissed on the ground of laches only" and exercise of power under Article 226, after the award had been made, was held to be unjustified.

60- Similarly, in State of Maharashtra Vs. Digambar, AIR 1995 SC 1991; and State of Orissa Vs. Dhobei Sethi & Anr. , (1995) 5 SCC 583, the Apex Court held that if the land acquisition proceedings stood finalized, interference by the writ court, quashing notification and declaration under Sections 4 and 6 respectively, was unwarranted and uncalled for. Exercise of jurisdiction in such a case cannot be said to be judicious and reasonable.

61- Similar view has been reiterated in Girdharan Prasad Missir Vs. State of Bihar, (1980) 2 SCC 83; H.D. Vora Vs. State of Maharashtra, AIR 1984 SC 866; Bhoop Singh Vs. Union of India, AIR 1992 SC 1414, Ram Chand Vs. Union of India, (1994) 1 SCC 44; and C. Padma Vs. Deputy Secretary to Govt. of Tamil Nadu, (1997) 2 SCC 627).

62- In Municipal Corporation of Greater Bombay Vs. I.D.I. Co. (Pvt) Ltd., AIR 1997 SC 482, the Hon'ble Supreme Court observed as under:-

"If the interested person allows the grass to grow under his feet by allowing the acquisition proceedings to go on and reach its terminus in the award and possession is taken in furtherance thereof and vest in the State free from all incumbrances, the slumbered interested person would be told off the gates of the Court that his grievance should not be entertained when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary power under Article 226 of the Constitution to quash the notification under Section 4 (1) and Declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court 5 should not exercise its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case, is hardly a ground for interference."

63- Similar view has been reiterated in State of Rajasthan & ors.Vs. D.R. Laxmi & ors., (1996) 6 SCC 445, wherein the Apex Court has held that even the void proceedings need not be set at naught if the party has not approached the Court within reasonable time, as judicial review is not permissible at a belated stage.

64- In Hindustan Petroleum Corporation Vs. Dolly Das, (1999) 4 SCC 450, the Apex Court held as under:-

"So far as the contention regarding laches of the respondents in filing the writ petition is concerned, delay, by itself, may not defeat the claim for relief unless the position of payment had been so altered which cannot be retracted on account of lapse of time or inaction of the other party. This aspect, being dependent upon the examination of the facts of the case and such a contention not having been raised before the High Court, it would not be appropriate to allow the appellants to raise such a contention for the first time before us. Besides, where the mode is that the period for which the option of renewal has been exercised, has not come to an end. During the subsistence of such a period, certainly the respondents could make a complaint that such exercise of option was not available to the appellants and, therefore, the jurisdiction of the High Court could be invoked even at a later stage. Further, the appellants are not put to undue hardship in any manner by reason of this delay in approaching the High Court for a relief."

65- In Ganpatibai & Anr. Vs. State of M.P. & Ors., (2006) 7 SCC 508, the Apex Court examined a case where the land owner filed a suit challenging the acquisition proceedings and it was dismissed as not maintainable and then he challenged the proceedings by filing a writ petition. The petition was dismissed on the ground of delay and laches. The Apex Court upheld the judgement observing that as long back the Apex Court had held that such suit was not maintainable, pendency of such suit could not be basis for explanation of the delay.

66- Similar view has been reiterated by the Hon'ble Supreme Court in Northern Indian Glass Industries Vs. Jaswant Singh, AIR 2003 SC 234; and Haryana State Handloom & Handicrafts Corporation Ltd. Vs. Jain School Society, AIR 2004 SC 850.

67- If some person has taken a relief from this Court by filing a Writ Petition immediately after the cause of action had arisen, petitioners cannot take the benefit thereof by filing a writ petition belatedly. They cannot take any benefit thereof at such a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person.

68- There can be no dispute to the settled and legal preposition that once the possession of the land is taken under the provisions of the Act it vests in the State free from all encumbrances whatsoever it cannot be divested. The land so declared cannot be restored to any person claiming without any right.

69- The meaning of word ''vesting' has been considered time and again. In Fruit and Vegetable Merchants Union Vs. The Delhi Improvement Trust, AIR 1957 SC 344, the Hon'ble Apex Court held that the meaning of word ''vesting' varies as per the context of the Statute in which the property vests. So far as the vesting under Sections 16 and 17 of the Act is concerned, the Court held as under:-

"In the cases contemplated by Sections 16 and 17, the property acquired becomes the property of Government without any condition or limitations either as to title or possession. The legislature has made it clear that vesting of the property is not for any limited purpose or limited duration."

70- Encumbrances actually mean the burden caused by an act or omissions of man and not that created by nature. In Collector of Bombay Vs. Nusserwanji Rattanji Mistri & Ors., AIR 1955 SC 298, the Hon'ble Apex Court held that the word ''encumbrances' in Land Acquisition Act mean interests in respect of which a compensation was made or could have been made.

71- In State of Himachal Pradesh Vs. Tarsem Singh & Ors., AIR 2001 SC 3431, the Hon'ble Apex Court held that the terminology ''free from all encumbrances' used in Section 16 is wholly unqualified and would include 9 in its compass every right including an easementary right, which affects the land. It includes "all rights, title and interests including easementary rights" and stands extinguished when the title vests in the State. However, in Himachal Pradesh State Electricity Board Vs. Shiv Kumar Sharma, AIR 2005 SC 954, the Hon'ble Apex Court held that when the land vests in the State free from all encumbrances, it does not include the easementary rights. Thus, ''free from all encumbrances' means vesting of land in the State without any burden or charge on it.

72- In Secretary of State Vs. Amulya Charan Banerjee, AIR 1927 Cal. 874, the Calcutta High Court considered the issue involved herein as to whether after acquisition of the land, it could be put to use for the purposes other than for what it was originally declared and held that ''after acquisition, the new owners have the ordinary rights of proprietors and may use their land as they think fit for any purpose, which does not infringe the rights of others and is not inconsistent with the purposes sanctioned by the Statute, under which the land has been taken. In Maharaja Luchmeswar Singh Vs. The Chairman of the Darbhanga Municipality, 17 IA 90, the Privy Council upheld the using of land for the purpose other than the purpose for which the land had been acquired reiterating the same view. In the said case, the land had been acquired for establishing a public Ghaat but on the part of the said land, a market had been established.

73- In Gulam Mustafa & Ors. Vs. The State of Maharashtra & Ors., AIR 1977 SC 448 in a similar situation, the Hon'ble Apex Court held as under:-

"Once the original acquisition is valid and title has vested in the Municipality, how it uses the excess land is no concern of the original owner and cannot be the basis for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring Authority diverts it to a public purpose other than the one stated in the ........

declaration."

74- Reiterated a similar view in C. Padma & Ors. Vs. Deputy Secretary to the Government of Tamil Nadu & ors., (1997) 2 SCC 627, the Hon'ble Apex Court held that if by virtue of valid acquisition of land, it stands vested in the State, thereafter claimants are not entitled to restitution of the possession on the ground that either original public purpose is ceased to be in operation or the land could not be used for any other purposes.

75- In Government of Andhra Pradesh & Anr. Vs. Syed Akbar, 2004 AIR SCW 7125, the Hon'ble Apex Court considered this issue and held that once the land has vested in State, it cannot be divested either by virtue of Section 48 of the Act nor can re-convey the said land to the person interested/tenure holder and the question of restitution of possession to the tenure holder does not arise. While deciding the said case, the reliance had been placed upon earlier judgments in State of Kerala & Ors. Vs. M. Bhaskaran Pillai & Anr., AIR 1997 SC 2703; Chandragauda Ramgonda Patil Vs. State of Maharastra, (1996) 6 SCC 405.

76- In Bangalore Development Authority Vs. R. Hanumaiah, (2005) 12 SCC 508, a similar view has been reiterated by the by the Hon'ble Apex Court placing reliance upon the judgments in Pratap Vs. State of Rajasthan, AIR 1996 SC 1296; Printers (Mysore) Ltd. Vs. M.A. Rasheed & Ors., (2004) 4 SCC 460.

77- In view of the above, the law can be crystallized that once the land is acquired and it vests in the State free from all encumbrances, it is not the concern of the land owner as how his land is used and whether the land is being used for which it was acquired or for any other purpose. He becomes persona non grata once the land vests in the State. He has a right to get compensation only for the same unless the acquisition proceedings are itself challenged. The State does not have a power to reconvey the land to the person interested nor such a person can claim any right of restitute on any ground, whatsoever.

78- When a person approaches a Court of Equity in exercise of its extraordinary jurisdiction under Article 226/227 of the Constitution, he should approach the Court not only with clean hands but also with clean mind, clean heart and clean objective. (Vide The Ramjas Foundation & Ors. Vs. Union of India & Ors., AIR 1993 SC 852; K.P. Srinivas Vs. R.M. Premchand & Ors., (1994) 6 SCC 620). Thus, who seeks equity must do equity. The legal maxim "Jure Naturae Aequum Est Neminem cum Alterius Detrimento Et Injuria Fieri Locupletiorem", means that it is a law of nature that one should not be enriched by the loss or injury to another.

79- In Nooruddin Vs. (Dr.) K.L. Anand (1995) 1 SCC 242, the Hon'ble Supreme Court observed as under:

"..............Equally, the judicial process should never become an instrument of appreciation or abuse or a means in the process of the Court to subvert justice."

80- Similarly, in Ramniklal N. Bhutta & Anr. Vs. State of Maharashtra & Ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-

"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point....... the interest of justice and public interest coalesce. The Courts have to weight the public interest vis-à-vis the private interest while exercising the power under Art. 226...... indeed any of their discretionary powers."

81- In Dr. Buddhi Kota Subbarao Vs. K Parasaran & Ors., AIR 1996 SC 2687, the Hon'ble Supreme Court has observed as under:-

"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner he wishes. Easy, access to justice should not be misused as a licence to file misconceived and frivolous petitions."

82- Similar view has been reiterated by the Supreme Court in K.K. Modi Vs. K.N. Modi & Ors., (1998) 3 SCC 573.

83- In M/s. Tilokchand Motichand & Ors. Vs. H.B. Munshi & Anr., AIR 1970 SC 898; State of Haryana Vs. Karnal Distillery, AIR 1977 SC 781; and Sabia Khan & Ors. Vs. State of U.P. & Ors., (1999) 1 SCC 271, the Hon'ble Apex Court held that filing totally misconceived petition amounts to abuse of the process of the Court and such a litigant is not required to be dealt with lightly, as petition containing misleading and inaccurate statement, if filed, to achieve an ulterior purpose amounts to abuse of the process of the Court.

84- In Agriculture & Process Food Products Vs. Oswal Agro Furane & Ors., AIR 1996 SC 1947, the Apex Court had taken a serious objection in a case filed by suppressing the material facts and held that if a petitioner is guilty of suppression of very important fact his case cannot be considered on merits. Thus, a litigant is bound to make "full and true disclosure of facts". While deciding the said case, the Hon'ble Supreme Court had placed reliance upon the judgment in King Vs. General Commissioner, (1917) 1 KB 486, wherein it has been observed as under:-

"Where an ex parte application has been made to this Court for a rule nisi or other process, if the Court comes to the conclusion that the affidavit in support of the application was not candid and did not fairly state the facts, but stated them in such a way as to mislead the Court as to the true facts, the Court ought, for its own protection and to prevent abuse of its process, to refuse to proceed any further with the examination of its merits......."

85- In Abdul Rahman Vs. Prasony Bai & Anr., AIR 2003 SC 718; and S.J.S. Business Enterprises (P) Ltd. Vs. State of Bihar & Ors., (2004) 7 SCC 166, the Hon'ble Supreme Court held that whenever the Court comes to the conclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse relief to the party. This rule has been evolved out of need of the Courts to deter a litigant from abusing the process of the Court by deceiving it. However, the suppressed fact must be material one in the sense that had it not been suppressed, it would have led any fact on the on the merit of the case.

86- It is true that no limitation has been prescribed for filing a petition under Article 226 of the Constitution but one of the several rules of self imposed restraint evolved by the superior courts is that the High Court will not entertain petitions filed after long lapse of time because that may adversely affect the settled/crystallized rights of the parties. If the writ petition is filed beyond the period of limitation prescribed for filing a civil suit for similar cause, the High Court will treat the delay unreasonable and decline to entertain the grievance of the Petitioner on merits. In State of Madhya Pradesh v. Bhailal Bhai - AIR 1964 SC 1006, the Constitution Bench considered the effect of delay in filing writ petition under Article 226 of the Constitution and held:

"...It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it.......It is not easy nor is it desirable to lay down any Rule for universal application. It may however be stated as a general Rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus.

...Learned Counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable."

87- In Ajodhya Bhagat v. State of Bihar - (1974) 2 SCC 501, the Court approved dismissal by the High Court of the writ petition filed by the Appellant for quashing the acquisition of his land and observed:

The High Court held that the Appellants were guilty of delay and laches. The High Court relied on two important facts. First, that there was delivery of possession. The Appellants alleged that it was a paper transaction. The High Court rightly rejected that contention. Secondly, the High Court said that the Trust invested several lakhs of rupees for the construction of roads and material for development purposes. The Appellants were in full knowledge of the same. The Appellants did not take any steps. The High Court rightly said that to allow this type of challenge to an acquisition of large block of land piecemeal by the owners of some of the plots in succession would not be proper. If this type of challenge is encouraged the various owners of small plots will come up with writ petitions and hold up the acquisition proceedings for more than a generation. The High Court rightly exercised discretion against the Appellants. We do not see any reason to take a contrary view to the discretion exercised by the High Court.

88- In State of Rajasthan v. D.R. Laxmi - (1996) 6 SCC 445, the Court referred to Administrative Law H.W.R. Wade (7th Ed.) at pages 342-43 and observed:

"The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the Court within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. When the discretion has been conferred on the Court, the Court may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the Court may not be exercised in such circumstances...."

89- In Girdharan Prasad Missir v. State of Bihar - (1980) 2 SCC 83, the delay of 17 months was considered as a good ground for declining relief to the Petitioner.

90- In Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. Pvt. Ltd. - (1996) 11 SCC 501, the Court held:

"It is thus well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the Court should be loath to quash the notifications. The High Court has, no doubt, discretionary powers under Article 226 of the Constitution to quash the notification under Section 4(1) and declaration under Section 6. But it should be exercised taking all relevant factors into pragmatic consideration. When the award was passed and possession was taken, the Court should not have exercised its power to quash the award which is a material factor to be taken into consideration before exercising the power under Article 226. The fact that no third party rights were created in the case is hardly a ground for interference. The DivisionBench of the High Court was not right in interfering with the discretion exercised by the learned Single Judge dismissing the writ petition on the ground of laches."

91- In Urban Improvement Trust, Udaipur v. Bheru Lal - (2002) 7 SCC 712, the Court reversed the order of the Rajasthan High Court and held that the writ petition filed for quashing of acquisition of land for a 35 residential scheme framed by the Appellant-Urban Improvement Trust was liable to be dismissed on the ground that the same was filed after two years.

92- In Ganpatibai v. State of M.P. - (2006) 7 SCC 508, the delay of 5 years was considered unreasonable and the order passed by the High Court refusing to entertain the writ petition was confirmed. In that case also the Petitioner had initially filed suit challenging the acquisition of land. The suit was dismissed in 2001. Thereafter, the writ petition was filed. The Court referred to an earlier judgment in State of Bihar v. Dhirendra Kumar - (1995) 4 SCC 229 and observed:

"In State of Bihar v. Dhirendra Kumar this Court had observed that civil suit was not maintainable and the remedy to question notification under Section 4 and the declaration under Section 6 of the Act was by filing a writ petition. Even thereafter the Appellant, as noted above, pursued the suit in the civil court. The stand that five years after the filing of the suit, the decision was rendered does not in any way help the Appellant. Even after the decision of this Court, the Appellant continued to prosecute the suit till 2001, when the decision of this Court in 1995 had held that suit was not maintainable."

93- In Sawaran Lata v. State of Haryana - (2010) 4 SCC 532, the dismissal of writ petition filed after seven years of the publication of declaration and five years of the award passed by the Collector was upheld by the Court and it was observed:

"In the instant case, it is not the case of the Petitioners that they had not been aware of the acquisition proceedings as the only ground taken in the writ petition has been that substance of the notification under Section 4 and declaration under Section 6 of the 1894 Act had been published in the newspapers having no wide circulation. Even if the submission made by the Petitioners is accepted, it cannot be presumed that they could not be aware of the acquisition proceedings for the reason that a very huge chunk of land belonging to a large number of tenure-holders had been notified for acquisition. Therefore, it should have been the talk of the town. Thus, it cannot be presumed that the Petitioners could not have knowledge of the acquisition proceedings."

94- We have considered the rival contention made by learned Counsel for the petitioners as well as learned Counsel for the respondents and we are of the view that land has been declared as forest reserve in the year 1950-55 and at present land in dispute including the major area is now used as forest land, and no right title had ever accrued in favour of the petitioners. A suit regarding rights over the land has been decided by the competent civil court and has been dismissed. A mutation proceedings has been decided by the competent revenue court thus both the petitions lacks merit and deserves to be dismissed.

95- Before parting with the order, we are of the view to direct the Chief Secretary of U.P. to constitute a Committee consisting Principle Conservator of forest with Commissioner/ District Magistrate/ Divisional Forest Officer/ Sub Divisional Magistrate or any other Officer as may be deemed fit, having jurisdiction over local area and to examine and verifying the records relating to land vested in the State Government/declared as forest reserved or forest land and to ensure that the land actually vested in the State Government vide notification/order or by operation of any Law be entered in the relevant records and name of the State Government accordingly be corrected and incorporated. Copy of the same be kept with the Principle Conservator of Forest and concerned revenue records.

96- With above observations, we are of the view that both the writ petitions lacks merit and deserve to be dismissed.

Accordingly, both the petitions are dismissed. There shall be no order as to costs.

Dated: 13th July 2017

Jyoti/-

(Sheo Kumar Singh-I, J.)       (Shri Narayan Shukla, J.)