Kailash Prasad & Others vs A.D.J & Others
2018 Latest Caselaw 439 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									             AFR
 
Court No. - 59
 

 
Case :- WRIT - C No. - 55019 of 1999
 

 
Petitioner :- Kailash Prasad & Others
 
Respondent :- A.D.J & Others
 
Counsel for Petitioner :- S.P.Srivastava, K.M. Tripathi
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Yashwant Varma, J.

Heard learned counsel for the petitioners and Sri K.R. Singh, the learned Additional Chief Standing Counsel.

The petitioners claim the following principal reliefs:

"(i) issue, a writ, order or direction in the nature of certiorari quashing order dated 30.11.95 passed by Respondent No. 1 in Review Petition No. 651 of 1994 (Annexure No. 6).

(ii) issue, a writ, order or direction in the nature of certiorari quashing the portion of order dated 24 May, 1993 passed by Respondent No. 1 and 27.10.89 passed by Respondent No. 2 with respect to plot No. 284 only."

The petitioners claim to be bhumidhars of plots details of which find mention in paragraph 10 of the writ petition. The proceedings which are impugned in this petition emanate from a notification issued under Section 4 of the Indian Forest Act 19271 in terms of which the plots referred to above came to be included in a preliminary notification issued under the 1927 Act for the purpose of constitution of a "reserved forest". The Forest Settlement Officer (hereinafter referred to as the "FSO") in terms of his order of 27 October 1989 upheld the claim of the applicant in respect of all plots except for a part of plot No. 284. He took the view that since the same was existing in the shape of a "nala", it was liable to be included in the proposed reserved forest. In the suo moto appeal which was taken against the said order, the Additional District Judge upheld the decision rendered by the FSO in terms of his judgment dated 24 May 1993.

The respondents thereafter moved an application for review of the judgment dated 24 May 1993. This review was allowed by the Additional District Judge in terms of an order dated 30 November 1995. By the said order the judgment of 24 May 1993 was reviewed and the original proposal which sought inclusion of all the plots over which the petitioners claimed rights came to be restored and included in the proposed reserved forest. The petitioners in paragraph 28 of the writ petition have stated that the review petition was allowed without inviting any objections from the petitioners. It is further asserted that the petitioners had no notice or knowledge of these proceedings and only came to know about the passing of the said order on 30 October 1999 when they approached the office of the concerned Lekhpal for the purposes of obtaining the extract of the relevant revenue records. It is at this stage that the instant writ petition came to be filed.

Pursuant to the notices issued, the State respondents have filed a counter affidavit in these proceedings in which they have supported the order of 30 November 1995. It is also pertinent to note here that the assertion of a lack of notice of the review proceedings is denied by the respondents.

` However, the basic contention which is canvassed before this Court and which appears to be the essence of the challenge to the order dated 30 November 1995 is that the Additional District Judge acted beyond his jurisdiction in reviewing his earlier order since he was not statutorily empowered to exercise powers of review. Having considered the rival submissions this Court is also of the view that the sole question which falls for determination would be whether the Additional District Judge had the jurisdiction and authority to review on merits his earlier order of 24 May 1993.

However before proceeding to rule upon the merits of the matter, it would be appropriate to delineate the backdrop in which the present matter has travelled to this Court.

In order to appreciate the challenge to the impugned order, it would be apposite to firstly review the scheme of the 1927 enactment. The 1927 Act, as is evident from its preamble and the SOR, was promulgated to consolidate the laws relating to forests and the transit of forest produce. It envisages the creation and preservation of "reserved forests", "protected forests", "village forests", the movement of forest produce and for matters connected therewith. Insofar as the creation of a reserved forest is concerned, that process is set in motion with the issuance of a notification under Section 4 evidencing the decision of the State Government to constitute any land as a reserved forest. Section 5 then declares that upon the issuance of a notification under Section 4, no right thereafter in or over the land comprised in the proposed reserved forest can accrue or be created except by way of succession or under a grant or contract made in writing by the Government. After the publication of the initial notification under section 4, the FSO is commanded to issue a proclamation of such notification in the area in question by virtue of the provisions of section 6 and invite claims from all persons who may assert the existence of rights over land which stands comprised in the notification issued under Section 4. Section 7 then deals with the enquiry which the FSO is to undertake in respect of claims preferred before him.

Section 9 then provides that all rights in or over land comprised in the initial notification and in respect of which no claim has been preferred or the knowledge of existence of which could not be acquired during the course of the enquiry conducted by the FSO under Section 7, shall stand extinguished upon the issuance of a notification under Section 20. The disposal of claims is taken up for consideration in accordance with the provisions contained in Sections 11 to 16 of the 1927 Act. Once the claims have been decided by the FSO under the provisions aforementioned and in case any person be aggrieved by such adjudication, the enactment confers upon such an aggrieved person the right of preferring an appeal under Sections 17 and 18 of the 1927 Act. It is upon a culmination of this process of adjudication that a final notification is issued under Section 20 specifying definitively the boundaries of the reserved forest and declaring the date specified in that notification from which the forest shall be treated as reserved. In terms of section 20(2) from the date specified in the notification, the forest shall be deemed to be a reserved forest.

It is also pertinent to notice here that the land holding of the petitioners was situate in Tehsil Robertsganj falling in the District of Sonbhadra. This aspect assumes significance in view of the facts which are noticed hereafter.

The hilly tracts of the Kaimur Range running through this Tehsil in District Sonbhadra and which by virtue of being part of the Vindhya Range continue to stride into the States of Madhya Pradesh and Bihar was an area where traditional forest dwellers and tribal communities existed and were occupying and tilling land which according to the respondents was forest. It is these tracts which came to be included in various notifications issued under the provisions of the 1927 Act for constitution of a reserved forest. Once notifications under Section 4 came to be issued various disputes arose with these tribal and indigent forest dwellers raising issues of their rights in and over the land being extinguished without due process. Voicing these complaints a letter petition reached the Supreme Court which proceeded to register the same as a PIL titled Banwasi Sewa Ashram vs State Of U.P. And Ors2. The Supreme Court after taking into account the objections of the tribal and traditional forest dwellers in terms of a detailed order passed on 20 September 1986 issued the following directions:

"10. Indisputably, forests are a much wanted national asset. On account of the depletion thereof ecology has been disturbed; climate has undergone a major change and rains have become scanty. These have long term adverse effects on national economy as also on the living process. At the same time, we cannot lose sight of the fact that for industrial growth as also for provision of improved living facilities there is great demand in this country for energy such as electricity. In fact, for quite some time the entire country in general and specific parts thereof in particular, have suffered a tremendous setback in industrial activity for want of energy. A scheme to generate electricity, therefore, is equally of national importance and cannot be deferred. Keeping all these aspects in view and after hearing learned Counsel for the parties in the presence of officers of the State Government and NTPC and representatives of the Banwasi Seva Ashram, we proceed to give the following directions:

(1) So far as the lands which have already been declared as reserved forest under Section 20 of the Act, the same would not form part of the writ petition and any direction made by this Court earlier, now or in future in this case would not relate to the same. In regard to the lands declared as reserved forest, it is, however, open to the claimants to establish their rights, if any, in any other appropriate proceeding. We express no opinion about the maintainability of such claim.

(2) In regard to the lands notified under Section 4 of the Act, even where no claim has been filed within the time specified in the notification as required under Section 6(c) of the Act, such claims shall be allowed to be filed and dealt with in the manner detailed below:

I. Within six weeks from 1-12-1986, demarcating pillars shall be raised by the Forest Officers of the State Government identifying the lands covered by the notification under Section 4 of the Act. The fact that a notification has been made under Section 4 of the Act and demarcating pillars have been raised in the locality to clearly identify the property subjected to the notification shall be widely publicised by beat of drums in all the villages and surrounding areas concerned. Copies of notice printed in Hindi in abundant number will be circulated through the Gram Sabhas giving reasonable specifications of the lands which are covered by the notification. Sufficient number of Inquiry Booths would be set up within the notified area so as to enable the people of the area likely to be affected by the notification to get the information as to whether their lands are affected by the notification, so as to enable them to decide whether any claim need be filed. The Gram Sabhas shall give wide publicity to the matter at their level. Demarcation, as indicated above, shall be completed by 15-1-1987. Within three months therefrom, claims as contemplated under "S. 6(c) shall be received as provided by the statute.

II. Adequate number of record officers shall be appointed by 31st December, 1986. There shall also be five experienced Additional District Judges, one each to be located at Dudhi, Muirpur, Kirbil of Dudhi Tehsil and Robertsganj and Tilbudwa of Robertsganj Tehsil. Each of these Additional District Judges who will be spared by the High Court of Allahabad, would have his establishment at one of the places indicated and the State shall provide the requisite number of assistants and other employees for their efficient functioning. The learned Chief Justice of the Allahabad High Court is requested to make the services of five experienced Additional District Judges available for the purpose by 15th December, 1986 so that these officers may be posted at their respective stations by the first of January, 1987. Each of these Additional District Judges would be entitled to thirty per cent of the salary as allowance during the period of their work. Each Additional District Judge would work at such of the five notified places that would be fixed up by the District Judge of Mirzapur before 20th of December, 1986. These Additional District Judges would exercise the powers of the Appellate Authority as provided under Section 17 of the Act.

III. After the Forest Settlement Officer has done the needful under the provisions of the Act, the findings with the requisite papers shall be placed before the Additional District Judge of the area even though no appeal is filed and the same shall be scrutinized as if an appeal has been taken against the order of the authority and the order of the Additional District Judge passed therein shall be taken to be the order contemplated under the Act.

(3) When the Appellate Authority finds that the claim is admissible, the State Government shall (and it is agreed before us) honour the said decision and proceed to implement the same. Status quo in regard to possession in respect of lands covered by the notification under Section 4 shall continue as at present until the determination by the appellate authority and no notification under Section 20 of the Act shall be made in regard to these lands until such appellate decision has been made.

(4) Necessary assistance by way of legal aid shall be provided to the claimants or persons seeking to raise claims and for facilitating obtaining of requisite information for lodging of claims, actual lodging of claims and substantiating the same both at the original as also the appellate stage as contemplated by the claimant legal aid shall be extended to the claimants without requiring compliance of the procedure laid down by the Legal Aid Board. The Legal Aid and Advice Board of Uttar Pradesh and the District Legal Aid and Advice Committee of Mirzapur shall take appropriate steps to ensure availability of such assistance at the five places indicated above. For the purpose of ensuring the provision of such legal aid, State of Uttar Pradesh has agreed to deposit a sum of Rupees five lakhs with the District Legal Aid Committee headed by the District Judge of Mirzapur and has undertaken to deposit such further funds as will be necessary from time to time. It shall be open to the District Legal Aid Committee under the supervision of the State Legal Aid Board to provide legal aid either by itself or through any Social Action Groups, like the Banwasi Seva Ashram.

(5) The land sought to be acquired for the Rihand Super Thermal Power Project of the NTPC shall be freed from the ban of dispossession. Such land is said to be about 153 acres for Ash Pipe Line and 1643 acres for Ash Dyke and are located in the villages of Khamariya, Mitahanai, Parbatwa, Jheelotola, Dodhar and Jarha. Possession thereof may be taken after complying with the provisions of the Land Acquisition Act, but such possession should be taken in the presence of one of the Commissioners who is being appointed by this order and a detailed record of the nature and extent of the land, the name of the person who is being dispossessed and the nature of enjoyment of the land and all other relevant particulars should be kept for appropriate use in future. Such records shall be duly certified by the Commissioner in whose presence possession is taken and the same should be available for use in all proceedings that may be taken subsequently.

The NTPC has agreed before the Court that it shall strictly follow the policy on "facilities to be given to land trustees" as placed before the Court in the matter of lands which are subjected to acquisition for its purpose. The same shall be taken as an undertaking to the Court.

(6) It is agreed that when a claim is established appropriate title deed would be issued to the claimant within a reasonable time by the appropriate authority.

(7) The Court appoints the following as a Board of Commissioners to supervise the operations and oversee the implementation of the directions given:

(i) Mr. P. R. Vyas Bhiman (I.A.S. retired), Executive-Chairman of the State Board of Revenue, U.P. now residing at Lucknow;

(ii) Dr. Vasudha Dhagamwar;

(iii) A representative to be nominated by the Banwasi Seva Ashram.

The Committee shall provided by the State Government with transport facilities and the appropriate infrastructure. This should be completed before 31st December, 1986." (emphasis supplied)

As is evident from the directions issued by the Supreme Court in Banwasi Sewa Ashram, the Court took cognisance of the complaints that the entire process of settlement had been completed without any survey being undertaken or the rights of the various traditional forest dwellers and occupants being taken into consideration. Consequently the Supreme Court provided that irrespective of whether any claim had been filed within the time specified under Section 6, such claims would be preferred and entertained by the concerned FSO pursuant to the directions issued by it. The order of the Supreme Court further mandated the appointment of Record Officers, who were to undertake the requisite enquiry and survey of the area. The direction then contemplated the FSO deciding all claims after affording opportunity of hearing to the persons in occupation. The decision of the FSO was thereafter to be placed before the Additional District Judge of the area and even though no appeal as contemplated under the Act had been filed or preferred, the Additional District Judge of the area was commanded to suo moto scrutinise the decision of the FSO as if an appeal had been taken against the order of the said authority. The Additional District Judge was to hear parties, evaluate the decision of the FSO and enter its findings with respect to the claims which stood adjudicated by the FSO. The Supreme Court further provided that where the Additional District Judge found the claim to be admissible, the State Government would honour the said decision and proceed to implement the same. This essentially conferred finality upon the decision rendered by the Additional District Judge. It was clearly provided further that till such process of adjudication is completed, no notification under Section 20 would be promulgated.

It is in the above backdrop that the decision of the FSO dated 27 October 1989 came to be placed before the Additional District Judge, Obra. The Additional District Judge, Obra in light of the directions issued by the Supreme Court passed a final order on 24 May 1993 affirming the findings returned and recorded by the FSO. This decision, therefore, for all purposes was conferred a stamp of finality in light of the observations entered by the Supreme Court in Banwasi Sewa Ashram referred to above. It is only after the proceedings culminated here that a review petition is stated to have been filed which the Additional District Judged thereafter proceeded to entertain and ultimately allow the applications for review in terms of the impugned judgment and order dated 30 November 1995.

A reading of the order of 30 November 1995 clearly establishes that it did not come to be entered on the ground that the decision of 24 May 1993 suffered from any manifest error apparent on the face of the order or the discovery of new evidence or material or for that matter any other patent error. A close reading of the decision of 30 November 1995 clearly establishes that what the Additional District Judge chose to do and exercise was a merit review. He has fundamentally undertaken an exercise of reevaluation of the original order and restored the original proposal as mooted by the FSO. Consequently the petitioners who had initially succeeded partly before the FSO and had obtained release of certain plots over which they claimed bhumidhari rights, were deprived of the fruits of the original decisions rendered both by the FSO and the Additional District Judge. The seminal question which therefore arises is whether the Additional District Judge was acting within his jurisdiction and was empowered to reconsider or re-examine the original order.

Now it is not disputed before this Court that no specific provision in the 1927 Act confers a power of review upon the Additional District Judge. On a plain reading of the various provisions of the 1927 Act it is evident that no such power stands conferred upon the appellate authority so as to review his earlier judgment on merits. The first significant conclusion which the Court therefore arrives at is the absence of a specific statutory power conferring the power of review upon the authorities constituted under the 1927 Act.

The second and yet not less important aspect relates to the actual extent of the power of review as recognised under our jurisprudence. As has been repeatedly held the power to review even though statutorily conferred and available is liable to be exercised only in certain exceptional situations. These exceptions are recognised to be

A. A patent error apparent on the face of the order the continuance of which would lead to a failure of justice;

B. Discovery of new and material evidence which despite the exercise of due diligence could not be placed at the time when the matter was originally decided;

C. A patent and palpable mistake or error in the original order.

The review jurisdiction is neither appellate nor one of rehearing. It is quintessentially corrective and can never be a substitution of views formed and declared.

The second facet of the review jurisdiction which has been recognised by Courts and is commonly described as a "procedural review" is available to be exercised and invoked again in limited situations where orders having been made ex parte and without notice to a necessary party, an order obtained on the practise of misrepresentation or concealment of material facts. Fundamentally, the "procedural review" power is exercised by a court ex debito justitiae where it finds that it has committed a procedural illegality which invalidates the decision or strikes at the very foundation of the decision making process. This power significantly is recognised to inhere and exist in all courts and quasi judicial forums even in the absence of an express or definitive statutory conferment. Though the distinction in the two genres of review are well recognised, it would be relevant to notice the following decisions of the Supreme Court in this regard.

The Supreme Court in Kapra Mazdoor Ekta Union Vs. Birla Cotton Spinning and Weaving Mills Ltd.& Anr3 succinctly explained and recognised the distinction between the two facets of the review power in the following terms:-

"18. It was, therefore, submitted before us, relying upon Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal that even in the absence of an express power of review, the Tribunal had the power to review its order if some illegality was pointed out. The submission must be rejected as misconceived. The submission does not take notice of the difference between a procedural review and a review on merits. This Court in Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal clearly highlighted this distinction when it observed: (SCC p. 425, para 13)

"Furthermore, different considerations arise on review. The expression ''review' is used in the two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Patel Narshi Thakershi case held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal."

19. Applying these principles it is apparent that where a court or quasi-judicial authority having jurisdiction to adjudicate on merit proceeds to do so, its judgment or order can be reviewed on merit only if the court or the quasi-judicial authority is vested with power of review by express provision or by necessary implication. The procedural review belongs to a different category. In such a review, the court or quasi-judicial authority having jurisdiction to adjudicate proceeds to do so, but in doing so commits (sic ascertains whether it has committed) a procedural illegality which goes to the root of the matter and invalidates the proceeding itself, and consequently the order passed therein. Cases where a decision is rendered by the court or quasi-judicial authority without notice to the opposite party or under a mistaken impression that the notice had been served upon the opposite party, or where a matter is taken up for hearing and decision on a date other than the date fixed for its hearing, are some illustrative cases in which the power of procedural review may be invoked. In such a case the party seeking review or recall of the order does not have to substantiate the ground that the order passed suffers from an error apparent on the face of the record or any other ground which may justify a review. He has to establish that the procedure followed by the court or the quasi-judicial authority suffered from such illegality that it vitiated the proceeding and invalidated the order made therein, inasmuch as the opposite party concerned was not heard for no fault of his, or that the matter was heard and decided on a date other than the one fixed for hearing of the matter which he could not attend for no fault of his. In such cases, therefore, the matter has to be reheard in accordance with law without going into the merit of the order passed. The order passed is liable to be recalled and reviewed not because it is found to be erroneous, but because it was passed in a proceeding which was itself vitiated by an error of procedure or mistake which went to the root of the matter and invalidated the entire proceeding. In Grindlays Bank Ltd. v. Central Govt. Industrial Tribunal it was held that once it is established that the respondents were prevented from appearing at the hearing due to sufficient cause, it followed that the matter must be reheard and decided again." (emphasis supplied)

More recently in Srei Infrastructure Finance Ltd. Vs. Tuff Drilling (P) Ltd.4 the Supreme Court observed:

"24. It is true that power of review has to be expressly conferred by a statute. This Court in para 13 has also stated that the word "review" is used in two distinct senses. This Court further held that when a review is sought due to a procedural defect, such power inheres in every tribunal. In para 13, the following was observed: (SCC p. 425)

"13. ... The expression "review" is used in the two distinct senses, namely, (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the court in Patel Narshi Thakershi case [Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844] held that no review lies on merits unless a statute specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal."

26. There cannot be a dispute that the power exercised by the Arbitral Tribunal is quasi-judicial. In view of the provisions of the 1996 Act, which confers various statutory powers and obligations on the Arbitral Tribunal, we do not find any such distinction between the statutory tribunal constituted under the statutory provisions or Constitution insofar as the power of procedural review is concerned. We have already noticed that Section 19 provides that the Arbitral Tribunal shall not be bound by the rules of procedure as contained in the Civil Procedure Code. Section 19 cannot be read to mean that the Arbitral Tribunal is incapacitated in drawing sustenance from any provisions of the Code of Civil Procedure. This was clearly laid down in Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corpn. [Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corpn., (2009) 8 SCC 646 : (2009) 3 SCC (Civ) 481] . In para 98(n), the following was stated: (SCC p. 693)

"(n) It is not bound by the procedure laid down under the Code. It may however be noticed in this regard that just because the Tribunal is not bound by the Code, it does not mean that it would not have jurisdiction to exercise powers of a court as contained in the Code. "Rather, the Tribunal can travel beyond the Code of Civil Procedure and the only fetter that is put on its powers is to observe the principles of natural justice." (See Icici Ltd. v. Grapco Industries Ltd. [Icici Ltd. v. Grapco Industries Ltd., (1999) 4 SCC 710] )"

As this Court reads the order of 30 November 1995, it is more than evident that the Additional District Judge has virtually undertaken an exercise of reconsideration and reevaluation of the claims of rival parties on merits. This procedure adopted by the Additional District Judge would not only fall foul of the fundamental precepts of the contours of the review jurisdiction, it is rendered further unsustainable on account of a complete absence of a statutory conferment of a power to review on merits. It is also evident from a reading of the impugned order that it also cannot be traced to the exercise of a power of "procedural review". Tested on the anvil of the scope of the "procedural review" power as enunciated by the Supreme Court it is evident that no circumstances existed or warranted the invocation of this power.

The order impugned in the instant writ petition must fall and perish on yet another but equally fundamental ground. As noticed above, in Banwasi Seva Ashram the Supreme Court had clearly observed that "....When the Appellate Authority finds that the claim is admissible, the State Government shall (and it is agreed before us) honour the said decision and proceed to implement the same." By virtue of the order dated 24 May 1993, the Additional District Judge had affirmed the view taken by the FSO. This order should have therefore rendered a quietus to the entire issue. The observations of the Supreme Court extracted above are clearly indicative of the underlying intent to confer a finality upon the decision rendered by the Additional District Judge. Hence, viewed even from this angle it is apparent that there was no scope for the Additional District Judge to have re-examined his earlier decision.

On an overall consideration of the aforesaid aspects it is more than evident that the order of 30 November 1995 was clearly passed without jurisdiction and cannot possibly be sustained.

Insofar as relief No. (ii) claimed in this petition is concerned, the Court notes that the petitioner has sought a reopening of the original order passed by the FSO on 27 October 1989 and the order passed by the Additional District Judge in suo moto appeal on 24 May 1993. The Court is constrained to note that no appeal had been preferred by the petitioner against the order dated 27 October 1989 or for that matter the order passed by the Additional District Judge in affirmation thereof. This it was open for him to do in light of the provisions of the 1927 Act. The decision of 27 October 1989 as affirmed by the Additional District Judge on 24 May 1993 was thus accepted. It is only by way of this petition that for the first time a challenge was laid to these two orders. The Court notes that this petition itself came to be preferred only in 1999. Consequently the challenge must necessarily be held to be barred by laches and inordinate delay. Consequently relief No. (ii) is refused.

Accordingly and for all the reasons assigned herein above, the writ petition is allowed to the extent that the order dated 30 November 1995 shall stand quashed. The petitioner shall be entitled to all consequential reliefs.

Order Date :- 9.5.2018

LA/-