U.P. Forest Dept. Thru. ... vs Mrs. Harcharan Kaur Gill And ...
2023 Latest Caselaw 6127 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 8
 
Case :- WRIT - C No. - 6208 of 2021
 
Petitioner :- U.P. Forest Dept. Thru. Prabhagiya Van Adhikari Lko. And Anr.
 
Respondent :- Mrs. Harcharan Kaur Gill And Others
 
Counsel for Petitioner :- C.S.C.,Amrendra Nath Tripathi,Lalta Prasad Misra
 
Counsel for Respondent :- Jitendra Saksena,Agendra Sinha,Charandeep Singh Bedi,Mandeep Kumar Mishra
 

 
Hon'ble Abdul Moin,J.

1. Supplementary affidavit filed on behalf of petitioners is taken on record.

2. Shri Charandeep Singh Bedi, learned counsel for the respondents submits that he does not intend to file objections to the same.

3. As such the Court proceeds to hear and decide the matter finally.

4. Heard Shri Ramesh Kumar Singh, learned Additional Advocate General, assisted by Dr. Krishna Singh, learned Standing Counsel for the petitioner and Shri Mandeep Kumar Mishra and Shri Charandeep Singh Bedi for the respondents no. 2 to 5.

5. The instant writ petition has been filed praying for the following main reliefs:

"(A) To issue a writ, order or direction in the nature of Certiorari to quash the impugned order dated 23.09.2020 (Annexure No. 1) to the writ petition passed by the opposite party no. 6 in M.C.A. No. 55/2017 Smt. Harcharan Kaur Gill and others vs Forest Settlement Officer and others.

(B) To issue a writ, order or direction in the nature of mandamus to commanding the opposite parties not to compel to the petitioners to enforce the order dated 23009.2020 (Annexure No. 1) to the writ petition passed by the opposite party no. 6 in M.C.A. No. 55/2017 Smt. Harcharan Kaur Gill and others vs Forest Settlement Officer and others."

6. Bereft of unnecessary details, the case set forth by the petitioner-State is that a notification under Section 4 of the Indian Forest Act, 1927 (hereinafter referred to as the Act, 1927) was issued on 23.11.1955, a copy of which is part of annexure 5 to the petition (page 321). The said notification pertained to notifying various chunks of land in various tehsils of Lucknow District as reserve forest. So far as the present controversy is concerned, the land pertains to Pargana Bijnor, Tehsil Lucknow and the area notified as reserve forest was 202 acres. A proclamation was also issued under Section 6 of the Act, 1927 which is disputed by the respondents. It is contended that the land in dispute was recorded in the name of Major Jai Singh Gill. A notification under Section 117 of the Act, 1950 was also issued on 11.10.1952 giving particulars of land including the land of the respondents which was to vest in the gram sabha. The said notification pertained to various districts including Dehradun, Saharanpur, Muzaffarnagar etc. Around the year 1995, a suit under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the Act, 1950) was filed by Major Jai Singh Gill praying for declaration that the land in dispute belongs to him. The suit was dismissed. Subsequently, a revision under Section 333 of the Act 1950 was filed and the revisional court remanded back the matter to the authority concerned. Thereafter, in the suit under Section 229-B, an application under Section 229-D of the Act, 1950 was filed by Major Gill which was rejected. Again, a revision was filed which was rejected which compelled Major Jai Singh Gill to approach this Court by filing Writ Petition No. 404 (MS) of 2012 in re: Major Jai Singh Gill vs State of U.P. and others. This Court vide the order dated 19.01.2012, a copy of which is part of annexure 2 to the petition (page 160) gave liberty to the petitioner therein to approach the Forest Settlement Officer and the said officer was required to decide the matter on merit according to rules and in good conscience.

7. In pursuance thereof, Major Jai Singh Gill filed his objections / claim before the Forest Settlement Officer in the year 2012, copy of which is annexure 2 to the petition under Section 6 & 7 of the Act, 1927. The competent authority, vide order dated 04.03.2017, a copy of which is part of annexure 2 to the petition (page 185) rejected the objections / claim. The respondents, being aggrieved, filed an appeal under Section 17 of the Act, 1927 which was registered as M.C.A. 55/2017 in re: Smt. Harcharan Kaur Gill and others vs Forest Settlement Officer and others. The appellate authority vide the order impugned dated 23.09.2020, a copy of which is annexure 1 to the petition, allowed the appeal, set aside the order dated 04.03.2017 as well as the notifications issued under Section 117 of the Act, 1950 dated 11.10.1952 and the notification issued under Section 4 of the Act 1927.

8. Being aggrieved the instant petition has been filed.

9. At the very outset, learned Additional Advocate General argues that the appellate authority has patently exceeded his jurisdiction in setting aside the notifications issued under Section 117 of the Act 1950 and Section 4 of the Act 1927 in as much as the said notifications were never under challenge at any stage and consequently there was no occasion for setting aside the said orders. It is also contended that the appellate court was not vested with powers of setting aside the aforesaid notifications. Placing reliance on the order impugned dated 23.09.2020 it is contended that perusal of paragraph 1 of the appellate order would itself indicate that the appellate authority was seized with the challenge to the order dated 04.03.2017 that had been passed by the Forest Settlement Officer and consequently there was no occasion for the appellate court to have exceeded its jurisdiction and to have set aside the notifications, as referred above, which were not even challenged by the respondents herein before the appellate court.

10. The further contention of learned Additional Advocate General is that a notification under Section 4 of the Act 1927 had been issued on 23.11.1955 in which the land which comprised of 532 acres of which 202 acres, which is the land in dispute, were notified as reserve forest. The said land pertained to Khatola village in Lucknow District and the notification specifically indicated that the land was recorded as a jungle. The entry was duly recorded in the name of State in the said land. It is contended that in terms of Section 3 of the Act 1927, the State Government is vested with the power to reserve a forest and any forest land or waste land which is the property of the government or over which the government has proprietary rights can be reserved for forest. Placing reliance on a copy of the khatauni for the fasli year 1356, a copy of which is annexure S.A. 1 to the supplementary affidavit dated 27.02.2023, it is contended that the disputed land was indicated as usar/banjar in the records and consequently would be a wasteland as provided under Section 3 of the Act, 1927.

11. It is contended that subsequent thereto, Major Jai Singh Gill staked his claim to the aforesaid land by contending that the erstwhile zamindar had executed a patta in the name of Major Jai Singh Gill through a patta dated 28.04.1952 and on the basis of the same the name of Major Gill was mutated in the land records on 14.05.1952. The entry continued for a long period of time. Subsequent to notification issued under Section 4 of the Act, 1927 the land was recorded in the name of the State but upon an application being filed by the Major Jai Singh Gill again his name was recorded in land record which continued for long period of time and thereafter a suit under section 229-B of the Act 1950 was also filed by the Major Gill praying for declaration that the land belongs to him.

12. It is also contended that the notification was issued by the Government in exercise of powers conferred by Section 117 of the Act 1950 whereby the land in dispute was also notified, a copy of which is annexure 5 to the petition (page 313).

13. It is contended that it was only when an application filed in the aforesaid suit under Section 229-B namely an application filed under Section 229-D of the Act, 1950 was rejected and the revision having been also rejected that the respondents filed a writ petition before this Court which resulted in this Court giving liberty to respondents to raise the grievance / file objections before the Forest Settlement Officer and after filing of the objections/claims before the Forest Settlement Officer that the order dated 04.03.2017 was passed whereby the claim of the respondents was rejected.

14. However upon an appeal the appellate authority by means of the order impugned has set aside the order passed by the Forest Settlement Officer and has also set aside the two notification as already referred above.

15. The argument of learned Additional Advocate General is that once a notification under Section 4 of the Act, 1927 was issued on 23.11.1955 and no objection was filed within the time specified subsequent to proclamation under Section 6 of the Act 1927 as such the land correctly stood recorded in the name of the State. It is also contended that Major Gill and his heirs i.e. the respondents in the capacity of even having the alleged patta executed by the erstwhile zamindar dated 28.04.1952 would not have any right over the land in dispute more particularly taking into consideration the provisions of the Act, 1950 and the Act, 1950 having coming into force with effect from 01.07.1952 and the patta itself having been executed on 28.04.1952 particularly keeping in view Section 4 of the Act, 1950. Thus it is argued that by no stretch of imagination could the appellate authority have set aside the order dated 04.03.2017 passed by the Forest Settlement Officer and the notifications as issued under Section 117 of the Act, 1950 and Section 4 of the Act, 1927 more particulaly when no challenge was raised before the appellate authority and the fact that even if the challenge could have been raised before the appellate authority he lacked jurisdiction to set aside the said notifications.

16. Another argument is that when the notification under Section 4 of the Act, 1927 was validly issued and which subsequently led to the proclamation under Section 6 of the Act, 1927 no notification under Section 20 of the Act, 1927 was required to be issued considering the law laid down by Hon'ble the Apex Court in the case of Prabhagiya Van Adhikari Awadh Van Prabhag vs Arun Kumar Bhardwaj (dead) through Lrs. and others passed in Civil Appeal No 7017 of 2009 decided on 05.10.2021 as the land stood vested in the state in terms of the notification under Section 4 of the Act, 1927.

17. Placing reliance on the aforesaid grounds it is argued that the order impugned merits to be set aside.

18. On the other hand, learned counsel appearing for the respondents argues that Major Gill was having a patta duly executed by the erstwhile zamindar on 28.04.1952. On the basis of mutation, the name of Major Gill was entered in revenue records on 14.05.1952. It is contended that the notification issued under Section 4 of the Act 1927 was incorrectly issued in as much as the State has the power, as provided under Section 3 of the Act, 1927, to constitute any forest land or wasteland as reserve forest. Placing reliance on the khatuani for the fasli year 1332 and 1366 copies of which are part of annexure 2 (page 83 and page 99 of the petition respectively), it is contended that a perusal of the khataunies would indicate that the disputed land is agricultural land and consequently the State could not have notified the agricultural land as reserve forest in as much as it is only forest land or wasteland which can be notified as a reserve forest.

19. It is also argued that the name of Major Gill continued to be recorded in the land records right from 1955 but on account of the conduct of the State authorities the respondents were compelled to file a declatory suit under Section 229-B of the Act 1950.

20. The further argument is that no proclamation under Section 6 of the Act, 1927 was ever issued by the State and thus consequential action which has been taken by the State on the basis of notification under Section 4 of the Act, 1927 is vitiated in the eyes of law.

21. It is also argued that the Forest Settlement Officer vide his order dated 04.03.2017 patently erred in law in going into the question of Section 8 of the Act, 1950 in as much as the provisions of Section 8 were not attracted as the provisions of Section 8 of the Act 1950 pertain to grazing or gathering of produce from land or collection of forest produce / fish from forest entered into after 08.08.1946 while the land in dispute was agricultural land.

22. Another argument is that notification under Section 20 of the Act 1927 is a sine qua non to the land being declared as a reserve forest but admittedly when no notification under Section 20 of the Act, 1927 was issued consequently the land cannot be said to be reserve forest.

23. Heard learned counsel for the parties and perused the record.

24. From the arguments as raised by learned counsel for the contesting parties and perusal of records it emerges that a notification under Section 4 of the Act 1927 was issued by the State Government on 23.11.1955. The said notification pertains to notifying various chunks of land in various parganas and tehsils of Lucknow division whereby the land, as contained in the said notification, was declared as reserved forest. The land in dispute pertains to Pargana Bijnor Tehsil Lucknow which comprises of 532 acres of land of which 202 acres of land was declared as reserve forest. It is this chunk of land for which the dispute has arisen. Subsequent thereto, a proclamation was issued under Section 6 of the Act 1927. Though the said proclamation is disputed by the respondents yet in terms of the directions issued by the Writ Court dated 19.01.2012, the respondents were given liberty to approach the Forest Settlement Officer and they approached and filed their objections / claim under Section 6 of the Act, 1927. As such the Court does not intend to enter into the dispute as to whether the proclamation under Section 6 was issued or not.

25. The aforesaid chunk of land is said to have been given as a patta by the erstwhile zamindar to Major Jai Singh Gill vide the patta dated 28.04.1952 on the basis of which the respondents claimed that the name of Major Jai Singh Gill was recorded in the revenue records on 14.05.1952. As per the khatauni for the fasli year 1356 which has been filed by the petitioners by means of the supplementary affidavit it emerges that the land was recorded as Usar / Bajnar in the records. In terms of Section 3 of the Act 1927 the State Government could constitute any forest land or wasteland which is the property of the government as reserve forest.

26. The State Government, on the basis of the khatauni for the fasli year 1356 wherein the disputed land is recorded as Usar / Banjar i.e. wasteland and considering the nature of the land as per Section 3 of the Act 1927, issued a notification under Section 4 of the Act, 1927. As Major Gill was claiming ownership over the said land on the basis of the patta given by the erstwhile zamindar and his name was also recorded in the revenue records which allegedly continued to be recorded over a long period of time yet for certain period of time the land was recorded in the name of the State government on the basis of the notification issued under Section 4 of the Act 1927, Major Gill filed declaratory suit under Section 229-B of the Act, 1950. Subsequently, the suit was dismissed, the revision allowed and the matter remanded back. However, when an application for interim injunction filed by Major Gill under Section 229-D of the Act, 1950 was rejected, he approached this Court by filing a Writ Petition No. 404 (MS) of 2012 and this Court, considering the provisions of the Act, 1927, gave liberty to Major Gill to approach the Forest Settlement Officer and the Forest Settlement Officer was required to decide the matter on merits. In pursuance thereto Major Gill filed a claim before the Forest Settlement Officer under Sections 6 and 7 of the Act, 1927 seeking ownership over the land in dispute and for expunging the entry of forest department. The objections / claim was rejected vide order dated 04.03.2017 considering the provisions of the Act 1927 and the Act 1950. Aggrieved against the said order, the respondents i.e. legal heirs of Major Gill filed an appeal under Section 17 of the Act 1927 and the learned appellate authority vide the order impugned dated 23.09.2020 allowed the appeal and set aside the order dated 04.03.2017 as well as the notifications issued under Section 117 of the Act, 1950 and Section 4 of the Act, 1927.

27. As to whether notification under Section 4 of the Act, 1927 was correctly issued is being considered first by the Court.

28. In this regard the Court may refer to the provision of Section 4 of the Act, 1950 which categorically provides that after the commencement of the Act, 1950, which date is 26.01.1951, the State Government, by notification, may declare all estates situated in the Uttar Pradesh to vest in the State and all such estates shall stand transferred to and vest in the State free from all encumbrances. It is not disputed by the respondents that a notification under Section 4 of the Act, 1950 had been issued and consequently even the estate of the erstwhile zamindar stood vested in the State Government. The date of vesting would obviously be 26.01.1951 i.e. the date when the Act, 1950 was published in U.P. Gazette. The consequence of vesting of estate in the State is governed by the provisions of Section 6 of the Act, 1950 which provides that all rights, title and interest of all the intermediaries in every estate in such area including the land whether cultivable or barren, grove or forests, whether within or outside village boundaries, shall cease and be vested in the State of Uttar Pradesh free from all encumbrances. Thus, in terms of Section 6 of the Act, 1950 the land in dispute, with issuance of notification under Section 4 of the Act 1950, stood vested in the State of Uttar Pradesh free from all encumbrances.

29. Further the provisions of Section 3 of the Act, 1927 would be relevant which give the power to the State Government to reserve any forest land or wasteland which is the property of the Government as a reserve forest. As per the khatauni for the fasli year 1356, the disputed land is recorded as Usar / Banjar. Roughly, fasli year 1356 would be the year 1947 as per the statement of both the learned counsel for petitioner and learned counsel for the respondents. The notification under Section 4 of the Act 1927 having been issued on 23.11.1955 would thus be in accordance with law when the land was admittedly recorded as Usar / Banjar in the khatauni for the fasli year 1356 having vested with the State Government in terms of Sections 4 and 6 of the Act, 1950.

30. At this stage the argument of learned counsel for the respondents is also to be considered as it has been contended that the disputed land was recorded as agricultural land in the khataunies for the fasli years 1332 and 1366, the copies of which are part of annexure 2 to the petition. The said khatauni would approximately relate back to the years 1923 and 1957 respectively as agreed to the learned counsels for the contesting parties. Notification under Section 4 of the Act, 1927 being of 23.11.1955 and the khatauni for the fasli year 1356 indicating the said land to be Usar / Banjar i.e. wasteland being subsequent to the entry for fasli year 1332 obviously no credence or cognizance can be taken of the entries as recorded in the fasli year 1332 (1923) and 1366 (1957) which are of a date prior to and subsequent to fasli year 1356. Thus, it is apparent that the notification under section 4 of the Act 1927 was correctly issued when the land was recorded as usar / banjar in the khatauni for fasli year 1356.

31. The provision of Section 8 of the Act, 1950 as had been considered by Forest Settlement Authority is not being considered by this Court as it has no relevance after the aforesaid discussion.

32. The mere fact that the name of major Gill continued to be recorded in the land records right from 1955 will not give any right either to Major Gill or his legal heirs i.e. respondents herein to derive any benefit of the long standing entry of Major Gills' name in the land records keeping in view the provisions of Section 4 of the Act, 1927 and Sections 4 and 6 of the Act 1950 wherein the land in dispute stood vested in the State Government free from all encumbrances.

33. As regards the argument that Major Gill was having a patta in his name over the disputed land it having being executed by the erstwhile zamindar on 28.04.1952 suffice to state that considering the provisions of Sections 4 and 6 of the Act, 1950 it is apparent that with effect from the date of vesting i.e. 26.01.1951, the disputed land stood vested with the State Government and could not have remained with the erstwhile zamindar to have enabled him to execute a patta in favour of Major Gill on 28.04.1952.

34. The argument of learned counsel for the respondents that no proclamation under Section 6 of the Act 1927 was ever issued by the State Government may not detain this Court in as much as Major Gill had acquiesced to the order of this Court dated 19.01.2012 passed in Writ Petition 404 of 2012 (MS) and filed his objections / claim before the Forest Settlement Officer as is provided under Section 6 of the Act, 1927 and thus it would not lie with the respondents to assert that no proclamation under Section 6 of the Act 1927 was issued.

35. The argument of behalf of the respondents that as no notification under Section 20 of the Act 1927 was issued consequently the disputed land cannot be said to be a reserve forest may also not detain the Court keeping in view the law laid down by Hon'ble the Apex Court in the case of Arun Kumar Bhardwaj (supra) wherein the Apex Court has held as under:

"24. Mr. Khan further raised an argument that the final notification under Section 20 of the Forest Act has not been published. A reading of Section 20 of the Forest Act does not show that for a reserved forest, there is a requirement of publication of notification but no time limit is prescribed for publication of such notification under Section 20. Therefore, even if notification under Section 20 of the Forest Act has not been issued, by virtue of Section 5 of the Forest Act, there is a prohibition against acquisition of any right over the land comprised in such notification except by way of a contract executed in writing by or on behalf of the Government. Since no such written contract was executed by or on behalf of the State or on behalf of the person in whom such right was vested, therefore, the Gaon Sabha was not competent to grant lease in favour of the appellant.

25. In a judgment reported as State of Uttarakhand and Ors. v. Kumaon Stone Crusher 6, an argument was raised that since notification under Section 20 of the Forest Act has not been published therefore, land covered by notification issued under Section 4 cannot be regarded as forest. This Court negated the argument relying upon Section 5 of the Forest Act as amended in State of Uttar Pradesh by U.P. Act No. 23 of 1965. It was held that regulation by the State comes into operation after the issue of notification under Section 4 of the Forest Act and that absence of notification under Section 20 of the Forest Act cannot be accepted. The Court held as under:

"145. At this juncture, it is also necessary to notice one submission raised by the learned counsel for the petitioners. It is contended that the State of Uttar Pradesh although issued notification under Section 4 of the 1927 Act proposing to constitute a land as forest but no final notification having been issued under Section 20 of the 1927 Act the land covered by a notification issued under 6 (2018) 14 SCC 537 Section 4 cannot be regarded as forest so as to levy transit fee on the forest produce transiting through that area. With reference to the above submission, it is sufficient to notice Section 5 as inserted by Uttar Pradesh Act 23 of 1965 with effect from 25-11-1965. By the aforesaid U.P. Act 23 of 1965 Section 5 has been substituted to the following effect:

"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."

146. Section 5 clearly provides that after the issue of the notification under Section 4 no forest produce can be removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf. The regulation by the State thus comes into operation after the issue of notification under Section 4 and thus the submission of the petitioners that since no final notification under Section 20 has been issued they cannot be regulated by the 1978 Rules cannot be accepted.""

36. From a perusal of the judgement of Arun Kumar Bhardwaj (supra) it is apparent that no notification under Section 20 of the Act 1927 is required by virtue of Section 5 of the Act, 1927, as there is prohibition against acquisition of any right over the land comprised in such notification. Thus, the ground is rejected.

37. Another interesting aspect of the matter is that the appellate authority vide the order impugned dated 23.09.2020 while allowing the appeal of the respondents and setting aside the order dated 04.03.2017 passed by the Forest Settlement Officer has also set aside the notification under Section 117 of the Act 1950 dated 11.10.1952 and the notification no. 6828/14-806-55 which is the notification issued under Section 4 of the Act 1927 dated 23.11.1955. Apart from the fact that both the notifications were never challenged before the appellate authority in as much as it was only the order dated 04.03.2017 passed by the Forest Settlement Officer which was challenged before the appellate authority, no power or jurisdiction of the appellate authority has been shown by the respondents which enabled or empowered it to set aside the notification issued under Section 117 of the Act 1950 and Section 4 of the Act 1927. In this regard this Court in the case of State of U.P. through Collector, Varanasi and another vs Tengari and another reported in 2006 SCC OnLine All 1110 has held as under:

"As stated earlier the learned Additional District Judge has absolutely no jurisdiction to hear the appeal against notification under section 4 of the Act. Appeal is directed against decision of Forest Settlement Officer in respect of claim of particular person."

38. Apart from the aforesaid illegality, the fact of the matter is that the notification under Section 4 of the Act 1927 dated 23.11.1955 pertains to various chunks of land situated in various parganas and tehsils of District Lucknow including the disputed land pertaining to Pargana Bijnor Tehsil Lucknow. Thus by no stretch of imagination could the appellate authority have set aside the entire notification, even if for the sake of arguments he was vested with the powers to set aside the notification. Likewise there was no occasion for the appellate authority to have set aside the notification under Section 117 of the Act, 1950 issued on 11.10.1952 giving particulars of land including the disputed land as the said notification pertained to various districts including Dehradun, Saharanpur, Muzaffarnagar etc. Thus, it is apparent that the appellate authority has patently erred in law in setting aside the said notification.

39. Accordingly, keeping in view the aforesaid discussion, the writ petition deserves to be allowed and is allowed. A writ of certiorary is issued quashing the order dated 23.09.2020, a copy of which is annexure 1 to the petition, passed by the respondent no. 6.

40. Consequences to follow.

Order Date :- 27.2.2023

J.K. Dinkar