State Of U.P. Thru Prabhagiya ... vs Akhileshwar Prasad And Others
2023 Latest Caselaw 14956 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Neutral Citation No. - 2023:AHC:102845
 
RESERVE JUDGMENT
 
Court No. - 9
 

 
Case :- WRIT - C No. - 8658 of 2004
 

 
Petitioner :- State Of U.P. Thru Prabhagiya Vanadhikari
 
Respondent :- Akhileshwar Prasad And Others
 
Counsel for Petitioner :- S.C.,S.K. Pathak
 
Counsel for Respondent :- W.H. Khan,Gulrez Khan,J.H.Khan,S.C.
 

 
Hon'ble Alok Mathur,J.

1. Heard Sri Manish Goyel, learned Senior Advocate assisted by Sri S.K. Pathak, learned counsel for the petitioner-State of U.P. as well as Sri Gulrez Khan, learned counsel appearing on behalf of respondents.

2. Present writ petition has been filed by the State of U.P. through Regional Forest Officer, Obra Van Prabhag, Sonbhadra challenging orders of the Record Officer, Sonbhadra dated 22.04.2022 as well as order dated 04.06.2002, passed by the Additional District Judge, Sonbhadra.

3. It has been submitted by learned counsel for the petitioner that present controversy is in relation to Plot No. 297/2 which was subsequently re-numbered as 30'gha' and was further changed to 3221'gha'. The respondent nos. 1 and 2 are the alleged owners of plot no. 662/1'gha' and they have sold the same to respondent no. 3.

4. It has been stated that application for correction of map was moved by the respondents before the Records Officer, Sonbhadra who allowed the same and demarcated the land by order dated 10.02.2002. Against the aforesaid order objection was filed by petitioners on 05.04.2002 and the respondents in turn preferred their objections on 17.04.2002. Records Officer by means of order dated 22.04.2002 allowed the application for correction of map in favour of respondents. Against the order dated 22.04.2002 an appeal was filed before the District Magistrate which has been rejected by means of judgment and order dated 04.06.2002, and both the above order have been assailed before this Court in the present writ petition.

5. Learned counsel for the petitioner has next submitted that said land has been declared to be forest land under Section 4 of the Forest Act and consequently, entire proceedings by the respondents are contrary to law.

6. It is further submitted by learned counsel for the petitioner that the forest land has been illegally encroached upon by various persons including forest dwellers, and cognizance was taken by the Hon'ble Supreme Court in the case of Banwasi Sewa Ashram Vs. State of U.P. and Others, (1993) 2 SCC 612 where certain directions were given by the Apex Court on 20.11.1986 and relevant extract of the same is given below :-

"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 coun- try 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 heating 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 estab- lish their rights, if any, in any other appro- priate 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, demarcat- ing 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 notifi- cation 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 noti- fication, 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 section 6(c) shall be received as pro- vided 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 Robersganj Tehsil. Each of these-Additional District Judges who will be spared by the High Court of Allaha- bad, 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 function- ing. The learned Chief JuStice of the Allaha- bad High Court is requested to make the serv- ices 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 those Addi- tional District Judges would be entitled to thirty per cent of the salary as allowance during the period of their work. Each Addi- tional 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 informa- tion for lodging of claims, actual lodging of claims and substantiating the same both at the original as also the appellate stage as con- templated, 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 indicat- ed 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 Commit-tee 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 Commis- sioners who are 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 Com- missioner in whose presence possession is taken and the same should be available for use in all proceedings that may be taken subse- quently.

The NTPC has agreed before the Court that it shall strictly follow the policy on "facilities to be given to land oustees" 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 under- taking to the Court.

(6) It is agreed that when a claim is estab- lished appropriate titledeed 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 direc- tions given:

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

(ii) Dr. Vasudha Dhagamwar;

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

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

7. It has been submitted by Sri Manish Goyel, learned Senior Advocate appearing for the State of U.P. that pursuant to the directions of the Apex Court, forest land was demarcated and pillars were erected and further that matter was scrutinized by the Additional District Judge and entire proceedings concluded in 1997.

8. It has been further stated that in case petitioners were aggrieved by such demarcation it was open for them to approach Additional District Judge, who was appointed by the Apex Court in the aforesaid case, but they remained silent and no objections were filed.

9. Learned counsel for the respondents on the other hand submits that their lands were excluded as noted in the order of Apex Court itself that reserved forest area under Section 20 of the Forest Act were not forming part of writ petitions and claim that the disputed land was excluded from the map on the directions issued by the Apex Court.

10. Learned Senior Advocate, submits that in the appeal preferred by the petitioners, it was specifically pleaded that in the light of judgment on Hon'be Apex Court and proceedings carried out therein no demarcation has been sought by the petitioners nor was any dispute raised at the time of demarcation. The Additional District Judge while noticing arguments of petitioners has duly recorded the same, but has failed to consider the implications and impact of the aforesaid judgment or record any findin in this regard and proceeded to uphold the orders passed by the Records Officer, Sonbhadra, dismissing appeal preferred by the State Government in favour of the respondents..

11. It is also noticed that Apex Court has also observed in its order dated 165.02.1993 in the case of Banwasi Sewa Ashram (supra), that records have been burnt.

12. Learned counsel for the petitioners vehemently submits that notification under Section 4 of the Indian Forest Act with regard to land in dispute was made in the year 1969-70 and the said land is in occupation and control of Forest Department. In the year 1993, aforestation drive was also carried out on the said land.

13. Learned counsel for the respondents has vehemently opposed the writ petition and has supported the impugned orders. He submits that respondents have been able to demonstrate before the authorities below that their land is not covered by Section 4 of Indian Forest Act and the respondents have been in occupation over the said land since long and hence there is no occasion to unsettle the settled position.

14. Aforesaid questions are seriously contested by the parties which has been considered by the authorities below, but this Court is persuaded by the arguments of learned counsel for the petitioners that in case land was notified under Section 4 of the Indian Forest Act, then in pursuance to the directions of Hon'ble Apex Court dated 20.11.1986, the said land would have been demarcated., and the entire proceeding including the impugned order are illegal, arbitrary and contrary to the directions of the Apex Court in the case of Banwasi Sewa Ashram (supra).

15. Before the Additional District Judge, this aspect of the matter was raised by the petitioners, where this controversy could have been looked into and settled by him but the Additional District Judge proceeded to consider the arguments raised by the respondents, and ignoring the issue raised by the petitioners, on which no finding was retured rendering the said order illegal and arbitrary.

16. This Court is of the considered view that the Additional District Judge while hearing Case No. 68/2002 - Van Vibhag Vs. Akhilesh Prasad and others, should have considered and recorded a finding about the applicability of the judgment of Hon'ble Supreme Court on the disputed property as to whether the same would be covered by Section 4 of Indian Forest Act and if so it would have been demarcated in the proceedings undertaken by the authorities in pursuance to the directions of Apex Court or it was the land exempted by the said order. The Additional District Judge has failed to take cognizance of the said issue, nor returned any finding in this respect and accordingly such an infirmity can be cured by remanding the matter back to the Additional District Judge to hear and pass appropriate orders on the issue discussed herein above.

17. Accordingly, impugned order dated 04.06.2002 is hereby set aside.

18. Without entering into the merits of the case, in the interest of justice, this Court is of the considered view that matter be remitted to the Additional District Judge for passing fresh orders and to specifically consider directions issued by the Hon'ble Apex Court in its order dated 20.11.1986 in the case of Banwasi Sewa Ashram (supra).

19. Let aforesaid exercise be carried out expeditiously, after giving opportunity of hearing to all the parties concerned by means of reasoned and speaking order in accordance with law, not later than six months from the date of production of certified copy of this order.

20. Writ petition is partly allowed.

Order Date :- 12.05.2023

A. Verma

(Alok Mathur, J.)