Ram Prasad vs State Of U P And 10 Others
2021 Latest Caselaw 7354 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

									AFR
 
Court No. - 38
 

 
Case :- WRIT - C No. - 41929 of 2018
 

 
Petitioner :- Ram Prasad
 
Respondent :- State Of U P And 10 Others
 
Counsel for Petitioner :- Satya Prakash Shukla
 
Counsel for Respondent :- C.S.C.,Saurabh Kumar
 

 
Hon'ble Yashwant Varma,J.

Heard learned counsel for the petitioner, Sri Saurabh Kumar who appears for respondent Nos. 5 to 11 and Sri Birendra Pratap Singh learned Standing Counsel for the State respondents.

The petitioner claims to be the bhumidhar over plot No. 961/1. The aforesaid plot is situated in Village Patwadh Tehsil Robertsganj District Sonbhadra and forms part of a belt of land falling south of the Kaimur Range. According to the petitioner the plot admeasures 10 Bighas 9 biswa. The petition challenges an order dated 06 October 2018 passed by the third respondent refusing permission to the petitioner to sell a part of his land holding. That permission was sought by the petitioner who belongs to the Scheduled Castes in light of the provisions made in Section 98 of the U.P. Revenue Code 20061. Section 98 of the Code reads thus:

"98. Restrictions on transfer by bhumidhars belonging to a scheduled caste- [(1) Without prejudice to the provisions of this Chapter, no bhumidhar belonging to a scheduled caste shall have the right to transfer, by way of sale, gift, mortgage or lease any land to a person not belonging to a scheduled caste, except with the previous permission of the Collector in writing :

Provided that the permission by the Collector may be granted only when-

(a) the bhumidhar belonging to a scheduled caste has no surviving heir specified in clause (a) of sub-section (2) of Section 108 or clause (a) of Section 110, as the case may be; or

(b) the bhumidhar belonging to a scheduled caste has settled or is ordinarily residing in the district other than that in which the land proposed to be transferred is situate or in any other State for the purpose of any service or any trade, occupation, profession or business; or

(c) the Collector is, for the reasons prescribed, satisfied that it is necessary to grant the permission for transfer of land.

(2) For the purposes of granting permission under this section, the Collector may make such inquiry as may be prescribed.]"

Before proceeding further, however, it would be apposite to step back and sketch the backdrop in which the controversy would have to be decided.

It would be relevant to recollect that this vast tract of land falling south of the Kaimur Range in District Sonbhadra formed subject matter of proceedings before the Supreme Court in Banwasi Sewa Ashram v. State of U.P. And Others2. This celebrated judgment took up the grievance of numerous traditional forest dwellers, members of the SC/ST communities who had been in possession of the said land for decades and were being evicted or deprived of their right to cultivate their land consequent to the inclusion of this vast area in various notifications issued under section 4 of the Indian Forest Act, 19273. In order to safeguard their rights and to ensure that a fair and transparent process of settlement was undertaken, the Supreme Court proceeded to formulate a special procedure for the trial and disposal of claims. Departing from the statutory mechanism inbuilt and laid in place by the 1927 Act, it provided that all claims of landholders and persons found in possession would firstly be decided by the Forest Settlement Officers4. Their decisions were thereafter to be placed before designated courts of Additional District Judges by way of suo moto appeals. The Additional District Judges were to examine and scrutinize the decisions of the FSO and after hearing the landholders or persons found to be in possession dispose of those appeals. The decisions rendered by the Additional District Judges were in terms of the directions issued by the Supreme Court liable to be treated as final and to be recognised as orders contemplated under the 1927 Act.

The salient orders which were passed by the Supreme Court in the aforesaid matter were noticed in great detail by this Court in State of U.P. Vs. ADJ Anpara and others5. The extracts of that decision are reproduced hereinbelow:-

"4. The case before the Supreme Court proceeded further and ultimately after taking into consideration the reports of the Commissioners submitted to it and the peculiar facts of the case as appearing before it, it framed detailed directions for the consideration and disposal of claims that were to be raised. Those directions as embodied in its detailed decision of 20 November 1986 rendered on that petition read thus:

"(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 December 1, 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 notices 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 January 15,1987. Within three months therefrom, claims as contemplated under section 6(c) shall be received as provided by the statute.

II. Adequate number of record officers shall be appointed by December 31, 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 Robersganj 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 December 15, 1986 so that these officers may be posted at their respective stations by January 1, 1987. Each of those Additional District Judges would be entitled to 30 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 December 20, 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."

5. It becomes pertinent to note that the Supreme Court at the very outset clarified that the directions as framed would have no application to land which had already come to be included in a final notification issued under Section 20 of the 1927 Act. The directions consequently stood confined to land notified under Section 4 and in respect of which settlement proceedings had not concluded. The detailed directions framed inter alia provided for survey and settlement operations being undertaken by the FSO's in accordance with the statutory obligations placed under the 1927 Act, the appointment of adequate number of survey officials, the publication of notices in the area of the proposal of the Government to create a reserved forest and the establishment of special courts manned by Additional District Judges to facilitate the process of adjudication of claims. The Supreme Court, in a significant departure from the adjudicatory procedure otherwise provided for under the 1927 Act, provided that all orders that may come to be passed or made by the FSO's would be mandatorily placed for the consideration and scrutiny of the Additional District Judges concerned and treated as suo moto appeals. It was further provided that the decision taken by the Additional District Judges on these suo moto appeals shall be taken to be the final orders as contemplated under the 1927 Act. The special procedure was evolved principally to protect the interests of the large number of tribals and traditional forest dwellers who otherwise were handicapped in seeking legal redress for protection of their rights by virtue of their social status.

6. It would also be relevant to advert to another order passed on 8 February 1989 in Banwasi Sewa Ashram, where the Supreme Court held that land which had been included in a notification issued under Section 4 of the 1927 Act, would also be subject to the rigours of Section 2 of the Forest Conservation Act, 1980 which had in the meantime been promulgated. The Court takes note of this order since it would be of some significance while evaluating the correctness of the submissions which were advanced. "

During the course of trial of claims in accordance with the procedure evolved by the Supreme Court, various complaints came to be made with regard to the manner in which they had been tried and disposed of. These complaints appear to have been made both by landholders as well as the Forest Department. It would be pertinent to note that the 1927 Act conferred no power of substantive review on authorities constituted thereunder. However taking notice of those complaints, the Supreme Court formulated a methodology of a "special review" in respect of certain category of cases. This Court in State of U.P. noted the position as it emerged from the directions of the Supreme Court in this regard in the following terms:-

"8. In the meanwhile, the Supreme Court while in seisin of proceedings in Banwasi Sewa Ashram took note of various complaints that were made with respect to the manner in which settlement proceedings had moved forward. It took note of the complaints made both by landholders as well as the Forest Department of apparent and patent errors having been committed by the FSO's in the disposal of claims. Bearing those complaints in mind, on 10 May 1991 it passed the following order:

"... It appears that there have been taken some instances where decisions have been taken but they required to be reviewed. Both the parties, counsel for the parties agrees, that review can be filed within 30 days from today and if so filed the plea of limitation shall not avail...."

9. The complaints with respect to settlement proceedings were yet again noticed by it in its order dated 16 February 1993, when it proceeded to frame the following additional directions:

"4. The reports of the Commissioners (January 1, 1993) and of Justice Loomba reveal that there have been some errors whereby rights of non-occupants have been recorded without on-the-spot inspection, hearings and to the prejudice of the actual occupants on the spot. The Commissioners and Justice Loomba have identified 17 forest villages in this respect which are as under:

1. Chattarpur

2. Goetha

3. Jaampani

4. Dhuma

5. Sukhra

6. Supachuan

7. Naudiha

8. Madhuvan

9. Karhiya (Dudhi)

10. Nagwa

11. Gulaljharia

12. Kudri

13. Ghaghri

14. Kirbil

15. Sagobaandh

16. Jarha

17. Bailhathhi

Agreeing with the Reports of the Commissioners, Justice Loomba and the contentions of Mr. Rajiv Dhawan, learned counsel for the petitioner, we direct that special review be undertaken in the above 17 villages only in respect of those cases where there are complaints from the individuals and the errors are patent on the record. The Forest Department shall also be at liberty to ask for special review in the cases pertaining to the above villages where according to the Department records have not been correctly prepared."

10. On 4 October 1993, the Supreme Court was apprised by the Department of Forest that various orders passed by the Forest Settlement Officer and the Additional District Judges merited review and reconsideration. Dealing with that prayer it entered the following observations in its order of 4 October 1993:

"......He seeks directions from this court for the review of those cases. The forest department may bring those cases to the notice of the Additional District Judge, who shall consider those cases in accordance with law....."

11. These three orders are also of significant import since the 1927 Act otherwise did not confer any right of a substantive review on the adjudicatory authorities constituted under that enactment. The State in purported exercise of the liberty granted by these orders preferred a petition for review before the Additional District Judge. That review petition has been dismissed on 24 May 1994. It is in the above backdrop that the instant writ petition came to be preferred challenging the orders passed by the Additional District Judge originally as well as on the review petition preferred thereafter. "

It becomes pertinent to note that the "special review" which was permitted by the Supreme Court by its order of 10 May 1991 was itself restricted to the 17 villages which were mentioned in that order. It must be stated that Village Patwadh, to which the present writ petition relates, was not part of the villages identified in that order.

The order of 4 October 1993 which was subsequently passed in Banwasi noted the contentions of the Forest Department alone and provided that in case it chose to prefer further petitions for review, such applications would be considered in accordance with law. Significantly and in contrast to its order of 10 May 1991, the Supreme Court desisted from passing directions for review petitions being filed or entertained.

Having set forth the backdrop in which the issues which arise in this writ petition would be liable to be considered, the Court reverts to the facts of the present case.

The FSO disposed of the claim of the petitioner by an order appended at Annexure-1 to the writ petition. The FSO while passing the aforesaid order essentially excluded the land holding of the petitioner from the proposed reserved forest. However, while doing so he also proceeded to enter upon a dispute inter se the petitioner and respondent Nos. 5 to 11 insofar as the extent of their individual rights over the plot in question was concerned. The FSO in his order proceeded to record that the private respondents were found to be in possession of 10 Bigha 9 Biswa whereas the petitioner was in possession of 3 Bigha 15 Biswa. In the suo motu appeal which was taken against that decision, the Additional District Judge by his judgment of 16 January 1992 upheld the decision of the FSO to the extent that it excluded the land of the petitioner from the proposed reserved forest. However insofar as the extent of inter se land holding was concerned, the Additional District Judge returned a finding that the private respondents would have rights over 10 Bigha 10 Biswa of the plot whereas the petitioner would have rights over 3 Bigha and 15 Biswa of land. Pursuant to the aforesaid order of the Additional District Judge, the Assistant Records Officer made consequential changes and entries in the relevant revenue record by his order of 23 September 1992.

The private respondents thereafter appear to have filed a review application against the order passed by the Additional District Judge. That review came to be allowed by a cryptic order passed by the Additional District Judge on 08 May 1994. The petitioner assailed the aforesaid order by way of a writ petition being Ram Prasad Vs. Additional District Judge Anpara, Sonbhadra6. In the meanwhile, another petition came to be preferred titled Jai Ram and another Vs. State of U.P.7. That petition alongwith various connected matters fell for decision before a learned Judge of the Court who after noticing the rival submissions disposed of the batch of writ petitions in the following terms

"In view of the joint submissions made by the learned Standing Counsel and learned counsel for the petitioners and on perusal of the writ petition and annexures, and in view of the decision of the Hon'ble Apex Court in similar types as reported in A.I.R. 1987 S.C. Page 374, this writ petition is finally disposed of with the directions that the State Government may constitute a High Power Committee consisting of a retired High Court Judge and two senior Government officers, wither in active service or retired, within a span of four months from today and if such a committee is constituted the petitioners may be allowed to be represented by lawyers having atleast seven years practice at the expenses of State Government's fund meant for legal aid if such a Committee is constituted and the matter be allocated before that Committee by proper notifications etc. However, petitioners are hereby restrained to cut any tree standing on the disputed lands but the petitioners will have the right to cultivate the land without causing any damage to the Forest land till the decisions given by the said High Power Committee. The impugned order is, thus, stands quashed and that the dispute is to be decided by the High Power Committee which may be constituted by the State Government within the specified time as directed above."

Following Jai Ram, the writ petition preferred by the petitioner here came to be disposed on 20 October 1997 in the following terms: -

"The writ petition is disposed of in the light of judgment rendered by Hon'ble Mr. Justice R.N. Ray in the case of Jai Ram Vs. State of U.P. in writ petition No. 25505 of 1994."

To complete the narration of facts it may be noted that although the High Powered Committee in terms of the directions issued in Jai Ram was to be constituted within 4 months from the date when that decision was rendered, undisputedly, the State has not complied with that direction till date even though more than two decades have passed.

As things stood thus, the petitioner moved an application on 23 December 2017 seeking grant of permission to sell a part of the land holding which stood recorded in his name pursuant to the original judgment of the Additional District Judge rendered on 16 January 1992. The application for permission has been refused simply on the ground that since the High-Powered Committee which was directed to be constituted in terms of the directions issued by this Court has yet to take a decision, the petitioner cannot be permitted to sell any part of his land holding.

Having noted the long and torturous journey that this litigation has traversed, the Court now proceeds to consider the validity of the stand taken by the respondents as it stands reflected from the impugned order.

At the very outset the Court is constrained to observe that the stand struck by the State is not only patently arbitrary but also wholly iniquitous for the following reasons.

Firstly, the State cannot deprive the petitioner of his rights over the land in dispute merely because it has chosen not to implement the directions issued by this Court 24 years ago. This Court finds itself unable to either sustain or countenance the impugned decision which is merely the result of the State having failed to constitute the Committee even though more than two decades have passed. No plausible or valid explanation was proffered by the learned Standing Counsel for what can only be described as an unjustified and incomprehensible state of slumber and inertia on the part of the State. It cannot be permitted to deprive the privilege accorded to the petitioner by Section 98 of the Code solely on the ground that the High-Powered Committee has not taken a decision and that too when the State has itself chosen not to constitute that Committee for the past twenty-four years. The second respondent has exhibited a complete lack of compassion, empathy and sensitivity when he chooses to not even admit that the High-Powered Committee has yet to be constituted by the State. He then proceeds to non-suit the petitioner with the ludicrous and wholly irrational observation that he has failed to lead any evidence to establish whether he had submitted any claim before the nonexistent Committee.

Secondly, the final directions issued in Jai Ram restrained the landholders specifically only from felling standing trees. The injunction which was incorporated reads thus: - "However petitioners are hereby restrained to cut any trees standing on the disputed lands but the petitioners will have the right to cultivate the land without causing any damage to the forest land till the decisions given by the High Powered Committee."

As is evident, there was no explicit restraint on transfer entered at all. The only two restraints that were placed was in respect of cutting of trees and damage to "forest land". The Court fails to appreciate how the aforesaid injunction could eclipse the rights conferred on the petitioner by Section 98 of the Code.

Thirdly, the Court has deliberately placed emphasis on the phrase "forest land" as used by the learned Judge while deciding Jai Ram. As noted hereinabove, the landholding of the petitioner did not remain forest land once it came to be excluded from the proposed reserved forest by virtue of the order passed by the FSO. The FSO while passing that order has clearly noted that the land was agricultural and was being tilled by the petitioner and the respondents. It had thus ceased to answer to the description of "forest land" even if one were to test it on the anvil of Section 2 of the Forest Conservation Act, 1980. The order of the FSO to that extent was upheld by the Additional District Judge in his judgment rendered on 16 January 1992. The order of 8 May 1994 reversing the aforesaid decision came to be set aside when the earlier writ petition preferred by the present petitioner came to be disposed of on 20 October 1997.

While the order on the review petition already stands set aside, it may be additionally noted that it, in any case, was clearly not maintainable since as noted in the earlier parts of this decision, Village Patwadh was not covered by the order of 10 May 1991 or 4 October 1993 passed in Banwasi. The 1927 did not confer any independent power on the authorities to undertake a substantive review. The review could have thus been entertained solely if it could have been sustained by the directions of the Supreme Court.

Fourthly, it must be stated that Jai Ram proceeded on the basis that an adjudicatory process in respect of rights and claims was yet to be completed. It was perhaps in that context that the learned Judge directed the constitution of a High-Powered Committee. However, as was noticed in the introductory parts of this judgment, the principal order passed in Banwasi conferred finality on orders passed by the Additional District Judges in suo moto appeals. Once those appeals came to be decided, the curtains clearly came down and a closure rendered subject to the limited window of review which flowed from the orders of 10 May 1991 and 4 October 1993. Jai Ram and the directions there for matters being referred to a High-Powered Committee, thus, can only be recognised as governing those cases and claims which had yet to be decided and disposed of in accordance with the special procedure evolved by the Supreme Court in Banwasi. In the petitioner's case that adjudicatory process had already come to an end. Once the aforesaid adjudication in accordance with the procedure formulated in Banwasi came to a conclusion and attained finality, nothing further essentially remained to be considered or decided by the High-Powered Committee.

That then leaves the Court to notice and consider the dispute inter se the petitioner and the private respondents which was raised in respect of the land in question. According to the private respondents, the petitioner while applying for permission to alienate, seeks to transfer land in excess of his share. It may at the outset be clarified that while considering the present writ petition, this Court is essentially called upon to rule on the validity of the impugned order passed by the third respondent. It is really not concerned nor is it called upon to enter any definitive or conclusive findings with regard to the extent of land holding of the petitioner and the private respondents. This more so since that dispute stands settled by virtue of the decisions rendered by the FSO and the Additional District Judge. The order passed on review already stands set aside in light of the order passed on the earlier writ petition preferred by the present petitioner following the decision in Jai Ram. The adjudication undertaken in accordance with the procedure formulated by the Supreme Court in Banwasi has thus lent a quietus and finality to the aforesaid dispute. All that is left to be ascertained is whether the claim of the petitioner is in accord with the findings returned in those proceedings. Those decisions bind both the petitioner as well as the private respondents.

In view of the aforesaid discussion, this Court is of the firm opinion that it was not open for the third respondent to defer consideration of the grant of permission merely because the State had itself failed to implement the judgment of this Court in Jai Ram. In any case, the rights of the petitioner and the private respondents already stood settled in light of the orders passed by the FSO and the Additional District Judge. The principal order in Banwasi of 20 November 1986 mandated finality being accorded to the adjudication which was undertaken in accordance with the procedure enunciated by the Supreme Court. There was thus in such cases no further requirement of the matter being considered by a High-Powered Committee. As found by this Court, the directions in Jai Ram can only be recognised as applying to those matters where an adjudication in accordance with the directions issued in Banwasi were yet to be finalized or had remained pending. No direction or order of the Supreme Court in Banwasi required or mandated a further scrutiny or review of a completed adjudication process.

For all the aforesaid reasons, the writ petition is allowed. The impugned order dated 06 October 2018 is hereby quashed. The matter shall stand remitted to the third respondent who shall consider and decide the application of the petitioner afresh and in accordance with the observations made hereinabove. The third respondent upon remit shall ensure that the process of consideration is concluded and final orders passed within 1 month of the presentation of a duly authenticated copy of this order. The Court leaves it open to the third respondent to grant an opportunity of hearing to the private respondents also. However, the rights of parties inter se shall be liable to be considered and decided in accordance with the observations made in this judgment.

Order Date :- 9.7.2021

faraz

(Yashwant Varma, J.)