Daya Shankar And Others vs Deputy Director Of ...
2023 Latest Caselaw 16916 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
RESERVED
 
Neutral Citation No. - 2023:AHC-LKO:39992
 
Court No. - 4
 
Case :- WRIT - B No. - 388 of 2023
 
Petitioner :- Daya Shankar And Others
 
Respondent :- Deputy Director Of Consolidation, Kheri, District Kheri And Others
 
Counsel for Petitioner :- Pradeep Kumar Tiwari,Parmatma Prasad Singh
 
Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey
 
& 
 
Case :- WRIT - B No. - 419 of 2023
 

 
Petitioner :- Nausar Khatun, And Others
 
Respondent :- Deupty Director Of Consolidation,Kheri And Others
 
Counsel for Petitioner :- Pradeep Kumar Tiwari,Parmatma Prasad Singh
 
Counsel for Respondent :- C.S.C.,Dilip Kumar Pande
 
Hon'ble Rajesh Singh Chauhan,J. 

1. Heard Sri P.K. Tiwari, learned counsel for the petitioner, Sri Shailendra Kumar Singh, learned C.S.C.-II and Sri Upendra Singh, learned Standing Counsel for the State respondents and Sri Dilip Kumar Pandey, learned counsel for the opposite party no. 6 / Gaon Sabha.

2. Since the issue in both the writ petitions is identical, therefore, with the consent of parties both the writ petitions are being decided by a common judgment.

3. Learned counsel for the State has provided the detailed instructions enclosing therewith the orders of this Court passed in the issue in question as well as copy of approval dated 2.7.1980 of Sub-Divisional Officer, Nighasan whereby the lease has been granted in favour of 58 persons and other relevant correspondences / orders, same are taken on record.

4. Learned State counsel has also produced the original records to show that the instructions so provided to the Court have been taken from those original records.

5. In the first writ petition, the petitioners have prayed following relief :

"(i) A writ, order or direction in the nature of Certiorari for quashing the impugned orders dated 14.02.2023, 27.09.2017, 16.07.2016 modified order 21.07.2016 and 31.12.1985 are being annexed as Annexure No.01, 02, 03 & 04, to this writ petition.

(ii) A writ, order or direction in the nature of Mandamus thereby commanding /directing the opposite party No.04 and 05 not interfering in peaceful possession of the petitioner over the land in question."

6. In the second writ petition, the petitioners have prayed following relief :

"(1) A writ, order or direction in the nature of Certiorari for quashing the impugned orders dated 14.02.2023, 27.09.2017. 16.07.2016 modified order 21.07.2016 and 31.12.1985 are being annexed as Annexure No.01, 02, 03 & 04, to this writ petition.

(ii) A writ, order or direction in the nature of Mandamus thereby commanding /directing the opposite party No.04 and 05 not interfering in peaceful possession of the petitioner over the land in question.

7. It has been submitted that disputed gatas were recorded before the Abolition of Zamindari by the U.P. Z.A. & L.R. Act in the name of the Rani Bhuwan Kumari w/o Raja Pratap Vikram Shah, resident of Singhai who was the Zamindar of Plot No. 1Sa and 23Sa along with another several other plots situated in Village Khairatia, Pargana- Khairigarh, Tehsil- Nighasan, District Kheri. After the Abolition of Zamindari the aforesaid plots comprised the holdings of Rani Bhuwan Kumari and she became the Bhumidhar of the plots referred to above.

8. On the enforcement of U.P. Imposition of Ceiling on Land Holding Act, 1960 proceedings were initiated against Rani Bhuwan Kumari. The Prescribed Authority under the U.P. Imposition of Ceiling on Land Holding Act, 1960 declared 423.39 acres of land as surplus which included 379.10 acres of land of land of plot No. 1- Sa and 23Sa along with other Gata on 05.12.1968.

9. After the land was declared surplus an endorsement to that effect was made in the Khetauni for the year 1376-F to 1378- F, thereafter plots were taken into possession by the state of U.P.

10. A proposed notification no. 1734/14-43-54 total area 2555 acre under Section 4 of the Indian Forest Act was published 29.03.1954 along with the disputed Gatas.

11. Thereafter the District authority of Lakhimpur executed the lease of plot No. 1- Sa and 23Sa along with the another plots area 3 acres to each in favor of the petitioners of the aforesaid under the Government Grant Act on 2.07.1980.

12. After execution of the lease deed of the respective plots the petitioners were put in possession. The leases were executed on 2 July, 1980, petitioners and others are the permanent leases by the authority concerned in exercise of the powers under section 27(3) of the U.P. Imposition of Ceiling on Land Holding Act, 1960. And on the basis of the leases the name of the petitioners was entered in the respective Khetauni of the village Khairatia.

13. The Forest authorities / respondents allege that the Section 20 of the Forest Act was published on 11.04.1984 by the no. 1655/14-2-20(39)-81 in pursuance of notification no. 1737/14-B-53-54, dated 29.03.1954 the land in question with another land declared the forest reserve land from date of 15.06.1984 with the approvals of Hon'ble Governor.

14. Forest authorities filed an objection before the Consolidation Officer Lakhimpur Kheri on 02.12.1985 claiming that Plot No. 1- Sa area 3 acres and 23Sa which is in possession of the petitioners is proposed to be declare Forest and a notification with respect to the aforesaid land is send for publication in the Gazette. This objection was registered as case no. 184 to 276 under section 9-A (2) of the Consolidation of Holdings Act.

15. Consolidation officer has allegedly illegally expunged the name of the lease holders and his possessions were declared illegal in case no. 184 to 276 under section 9A(2) of the U.P. C. H Act on order dated 31.12.1985. In aforesaid case fact is admitted that the lease holders are in possession and his names are recorded as Bhumidhar with non transferable rights.

16. The notification issued under section 20 of the Forest Act 1927, dated 11.04.1984 was challenged by the Babu Lal and 51 others lease holders of the state of U.P., titled as writ petition no. 1771 of 1987 Babu Lal and others versus State of U.P. and another, the aforesaid writ petition was dismissed by this Hon'ble Court on order dated 17.05.2005, writ petition no. 5690 of 2000 filed by the Dayashankar and 9 another's by which they were challenged the notification dated 11.04.1984 under section 20 of the Forrest Act for its quashing same was dismissed by this Hon'ble court on order dated 21.11.2000, writ petition no. 63 of 2001 M/B Ramnageena and 9 others versus State of U.P. and another, by which they were challenged the notification dated 11.04.1984 under section 20 of the Forrest Act for its quashing same was dismissed by this Hon'ble court on order dated 19.09.2007.

17. Against the order dated 31.12.1985 appeal nos 1576 to 1581 of 1992 1993 under section 11(1) of UP. CH. Act filed by the Lease holders, all appeals allowed except in respect of Gata no. 23 and matter was remanded to the trial court on order dated 24.06.1993 by the S.O.C. Kheri

18. In pursuance of remand order matter was again heard by the Consolidation Officer, written arguments were filed by the petitioners in matter before the trial court, Consolidation Officer had again confirmed the ex parte order dated 31.12.1985 which was already set aside in appeal and directed the land in question will be recorded as forest Land without considering the case of the petitioners. Further, the order dated 16.07.2016 was amended vide order dated 21.7.2016.

19. Against the order dated 16.07.2016 passed by the opposite party no. 3, total 71 appeals preferred, all appeals consolidated, appeal no. 558/2016 was made leading file, all appeals was dismissed by arbitrary manner without considering the case of the petitioners and evidence available on the face of records filed by the petitioners his vide illegal order dated 27.09.2017.

20. Being aggrieved of the orders dated 27.09.2017 and 16.07.2016 revision was preferred by the petitioners before the opposite party no. 1 on different dates.

21. Aforesaid all revisions was illegally dismissed by the opposite party no. 1 by arbitrary manner without considering the case of the petitioners and evidence available on the face of records filed by the petitioners his vide illegal order dated 14.02.2023.

22. Per contra, at the very outset, learned counsel for the State has stated that in the issue in question there is a concurrent finding of fact, on a subject matter, of Consolidation Officer, Settlement Officer, Consolidation and Deputy Director of Consolidation, Lakhimpur Kheri, therefore in view of the settled proposition of law of the Apex Curt in catena of cases, the interference in the aforesaid concurrent findings may not be required under Article 226 of the Constitution of India.

23. In the present case the notification u/s 4 of the Indian Forest Act, 1927 (herein after referred to as Act, 1927) bearing Gazette Notification No. 1737/14 dated 29.3.1954 for the proposed reserving of 2555 Acre land for the Forest area. Section 4 of the Act, 1927 is being reproduced herein below :

"4. Notification by [State Government). (1) Whenever it has been decided to constitute any land a reserved forest, the [State Government] shall issue a notification in the [Official Gazette]- (a) declaring that it has been decided to constitute such land a reserved forest;

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

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

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

(2) The officer appointed under clause (c) of sub-section (1) shall ordinarily be a person not holding any forest-office except that of Forest Settlement-officer.

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

24. For the disposal of the present issue it would be necessary to reproduce section 5,20 and 23 of the Forest Act, 1927:

"5. Bar of accrual of forest-rights.-After the issue of a notification tinder section 4, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the [Government] or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the 2[State Government] in this behalf.

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

(a) the period fixed under section 6 for preferring claims have elapsed and all claims (if any) made under that section or section 9 have been disposed of by the Forest Settlement-officer; (b) if any such claims have been made, the period limited by section 17 for appealing from the orders passed on such claims has elapsed, and all appeals (if any) presented within such period have been disposed of by the appellate officer or Court; and

(c) all lands (if any) to be included in the proposed forest, which the Forest Settlement-officer has, under section 11, elected to acquire under the Land Acquisition Act, 1894 (1 of 1894), have become vested in the Government under section 16 of that Act, the [State Government) shall publish a notification in the [Official Gazette), specifying definitely, according to boundary-marks erected or otherwise, the limits of the forest which is to be reserved, and declaring the same to be reserved from a date fixed by the notification.

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

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

25. As per instructions so provided by the State respondents it is clear that the claim in respect of the similar and identical parties has been rejected by the Forest Settlement Officer, Nighasan and those orders were challenged before the Appellate Authority and those appeals were rejected by the Appellate Authority. Not only the above some similarly and identically placed persons have filed writ petition before this Court which has been rejected. Thereafter, the special appeal was filed which has also been rejected. One writ petition bearing Writ Petition No. 192 of 1959 was filed under the title of Dr. Gurdeep Singh and another vs. The Divisional Forest Officer, North Kheri Division, Kheri and others which was rejected vide order dated 18.5.1964. Against the order dated 18.5.1964 the Special Appeal No. 118/1964 : Dr. Gurdeep Singh vs. The Divisional Forest Officer, North Kheri Division, Kheri and others was filed and dismissed by this Court vide order dated 19.10.1966. Not only the above the declaratory suit u/s 229 B of U.P.Z.A. & L.R. Act has been filed by Dr. Gurdeep Singh and his wife which was finally decided on 30.11.1966 whereby the aforesaid suit was dismissed with costs. The aforesaid Gurdeep Singh again filed Writ Petition No. 931/1975 which was rejected by this Court vide order dated 8.3.1979. One more person has filed Writ Petition No. 2380 of 1998(M/B) (Surjeet Singh and others vs. State of U.P. & others) which has also been dismissed vide judgment and order dated 6.8.1998.

26. For the issue in question relating to the land in question one Writ Petition No. 1771 of 1987 has been filed under the title Babulal and others vs. State of U.P. & others which came to be dismissed by this Court vide order dated 17.5.2005. For the convenience the order dated 17.5.2005 is being reproduced herein below :

"By way of this petition the petitioners seek a direction in the nature of certiorari quashing the Notification dated 11 April, 1984 issued in exercise of power under Section 20 of the Indian Forest Act and further direction in the nature of mandamus directing the respondents not to Interfere in the possession of the petitioners over the land and the area allotted to them with respect to the plot nos 1-Sa and 23-Sa of village Khairatia as shown in Annexure 2 to the petition.

The case of the petitioners is that the land in question belonged to Rani Bhuwan Kumari W/o Raja Pratap Vikram Shah and the same was declared surplus by the Collector in exercise of power under Section 27() of U.P, Imposition of Coiling on Land Holdings Act, 1960. Subsequently the land in question was allotted to the petitioners and since then they ar in possession over the land in dispute. It has further boon submitted that the aforesaid land is entered into the revenue records in the name of the petitioners and thus the aforesaid land does not belong to the forest department. It is, therefore, prayed that the possession of the petitioners so as the land in dispute be not disturbed.

The petition has been contested amongst others on the ground that Rani Bhuwan Kumari W/o Raja Pratap Vikram Shah has no rights in the disputed plots because after issuing notification under Section 4 of the Indian Forest Act on 29.3.1954, she filed an objection under Section 6/9 of Indian Forest Act before the Forest Settlement Officer, Nighasan Kheri which was rejected on 30.9.1958, a copy of which has been annexed as Annexure CA-1 to the counter affidavit. Against that order Rani Bhuwan Kumari filed an appeal before the Deputy Commissioner, Kheri, which was also dismissed on 30.4.1959, a certified copy of the order is annexed as Annexure CA-2 to the counter affidavit. Thus all the rights of Rani Bhuwan Kumari extinguished and the judgment of the Forest Settlement Officer became final. It has further been pleaded that no surplus land was declared and the prescribed authority, Nighasan passed the order on 30.5.1964 in case No.243 under Section 14(3) of CH Act. The disputed plots are not held by Rani Bhuwan Kumari Devi as such those plots are excluded from the surplus area. Certified copy of the said order is being annexed as Annexure No.CA-3 to the counter affidavit. It has further been pleaded that the plots in dispute are excluded from the surplus area and no question of more plots being declared as surplus of Smt. Rajrani and the land in dispute belongs to reserved forest and disputed plots are excluded from ceiling proceedings and the consolidation courts also decided the case against the petitioners by orders dated 26.3.1984 and 17.1.1985 passed by Consolidation Officer, Nighasan and certified copy of the order dated 18.7.1986 passed by the Settlement Officer, Consolidation being annexed as Annexures CA-S and CA-6 to the counter affidavit. has further been pleaded that the petitioners have filed objections and contested the case before the Consolidation Courts. It has been pleaded that Dr. Gurdeep Singh filed objection under Section 14(3) of U.P Imposition of Ceiling on Land Holdings Act and Gurdeep Singh aforesaid also filed a writ petition bearing No.931 of 1976, which was dismissed by this Court vide order dated 8.3.1979, a copy of which has been annexed as Annexure No.CA-7 to the counter affidavit.

We have heard the learned counsel for the parties at length and have gone through the record and find that the land in dispute has already been declared as forest land after issuing notification under section 4 of the Indian Forest Act on 29.3.1954. After the issue of said notification in the year 1954 the petitioners and other persons contested the matter before the Forest Settlement Officer and all the objections of the petitioners and other persons were dismissed and the land in question was declared as reserved forest. Therefore, subsequent proceedings taken and drawn under the U.P. Imposition of Ceiling on Land Holdings and other proceedings have no meaning and such proceedings are not binding and have no legal effect. -

The petition has no force and is dismissed."

27. In the aforesaid judgment the Division Bench of this Court has not only upheld the orders being passed by the competent consolidation authorities but also clarified the effect under the Act, 1960. The Division Bench has categorically observed that the subsequent proceedings taken and drawn under the U.P. Imposition of Ceiling of Land Holdings Act, 1960 ( herein after referred to as Act, 1960) and other proceedings have no meaning and such proceedings are not binding and have no legal effect. As per learned counsel for the State the aforesaid order has not been challenged and that order has attained finality, therefore, so far as the claim of the petitioners that they are the lessee of the State Government being patta holder of surplus land in the light of Act, 1960 would not make them entitled to have possession on such land.

28. Learned counsel for the State has submitted that the patta in question was approved by the Sub-Divisional Officer, Nighasan on 2.7.1980 as list of 58 patta holders have been enclosed with the enclosures which clearly shows that the approval was grated by the S.D.O. concerned on 2.7.1980. Learned State Counsel has referred section 27 of the Act, 1960, which reads as under :

"27. Settlement of surplus land. -(1) The State Government shall settle out of the surplus land in a village in which no land is available for community purposes or in which the land as available is less than 15 acres with the [Gaon Sabha] of that village so however that the total land in the village available for community purposes after such settlement does not exceed 15 acres. The land so settled with the [Gaon Sabha] shall be used for planting trees, growing fodder or for such other community purposes, as may be prescribed.

[(2) The State Government may either settle any surplus land in accordance with sub-section (1) sub-section (3) or use or permit its use in accordance with Section 25 or manage or otherwise deal with it in such manner as it thinks fit.]

[(3) Any remaining surplus land shall be settled by the Collector in accordance with the order of preference and subject to the limits, specified respectively in [sub-sections (1) and (3)]of Section 198 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.

[(4) The Commissioner may of his own motion and shall, on the application of any aggrieved person, enquire into such settlement and if he is satisfied that the settlement is irregular he may after notice to the person in whose favour such settlement is made to show cause -Pradesh Zamindari Abolition and Land Reforms Act, 1950 shall mutatis mutandis apply in relation to the such vesting.

(i) cancel the settlement and the lease, if any and thereupon, notwithstanding anything contained in any other law or in any instrument, the rights, title and interest of the person in whose favour such settlement was made or lease executed or any person claiming through him in such land shall cease, and such land shall revert to the State Government; and

(ii) direct that every person holding or retaining possession thereof may be evicted, and may for that purpose use or cause to be used such force as may be necessary.]

(5) Every order passed by the Commissioner under sub-section (4) shall be final.

(6) The Commissioner acting of his own motion under sub-section (4) may issue notice, and an application under that sub-section may be made, -

[(a) in the case of any settlement made or lease granted before November 10, 1980, before the expiry of a period of [seven years]

[(b) in the case of any settlement made or lease granted on from the said date, and or after the said date, before the expiry of a period of five years from the date of such settlement or lease] or up to November 10, 1987, whichever be later].

[(6A) Where any surplus land has been settled by the Collector under sub-section (3), and any person other than the person in whose favour such settlement was made is in occupation of such land in contravention of the provisions of this Act, the Collector may, of his own motion and shall on the application of the person in whose favour such settlement was made, put him in possession of such land and may for that purpose use or cause to be used such force as he considers necessary.

(6B) Where any person, after being evicted under this section, reoccupies the land or any part thereof without lawful authority, he shall be punishable with imprisonment for a term which may extend to two years but which shall not be less than three months and also with fine which may extend to three thousand rupees :

Provided that the Court convicting the accused may, while passing the sentence, direct that the whole or such portion of the fine that may be recovered as the Court considers proper, be paid to the person in whose favour such settlement was made as damages for use and occupation.

(6C) Where in any proceeding under sub-section (6-B), the Court, at any stage after cognizance of the case has been taken, is satisfied by affidavit or otherwise -

(a) that the accused is in occupation of the land to which such proceeding relates, in contravention of the provisions of the Act; and

(b) that the person in whose favour such settlement was made is entitled to the possession of such land;

the Court may summarily evict the accused from such land pending the final determination of the case and may put the person in whose favour such settlement was made in possession of such land.

(6D) Where in any such proceeding, the accused is convicted the interim order passed under sub-section (6-C) shall be confirmed by the Court.

(6E) Where in any such proceeding, the accused is acquitted or discharged and the Court is satisfied that the person so acquitted or discharged is entitled to be put back in possession over such land, the Court shall, on the application of such person, direct that delivery of possession be made to him.

(6F) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, every offence punishable under sub-section (6-B) shall be cognizable and non-bailable and may be tried summarily.

(6G) For the purpose of speedy trial of offences under this section, the State Government may, in consultation with the High Court, by notification, constitute, special Courts consisting of an officer not below the rank of Sub-Divisional Magistrate, which shall, subject to the provisions of the Code of Criminal Procedure, 1973, exercise in relation to such offences the powers of a Judicial Magistrate of the first class.]

(7) The State Government may, [by a general or special order to be published in the manner prescribed], declare that as from a date to be specified in this behalf, all surplus land situate in a circle which could not be settled under the provisions of this Act, shall vest in the Gaon Sabha concerned, and the provisions of Section 117 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 shall mutatis mutandis apply in relation to the such vesting."

29. In the light of aforesaid provision of law, more particularly, under section 27 (3) of the Act, 1960 the approval of patta may be granted only by the Collector, therefore, the S.D.O., Nighasan was not the competent authority to grant approval of patta. Hence, the order dated 2.7.1980 granting approval to the patta to the petitioner is without jurisdiction, so non-est in the eyes of law.

30. Learned State Counsel has referred a decision of Apex Court in re: (State of U.P. vs. Dy. Director of Consolidation and others) (1996) 5 Supreme Court Cases 194 referring para 9 and 10 which reads as under :

"9. The crucial question for consideration, however, is whether the consolidation authorities have the jurisdiction to go behind the notification under Section 20 of the Act and deal with the land which has been declared and notified as a reserve forest under the Act. It is necessary, therefore, to examine the scheme of Chapter II of the Act. Section 3 provides that the State Government may constitute any forest land or wasteland which is the property of the Government or over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Government is entitled, a reserved forest. Section 4 provides for the issue of a notification declaring the intention of the Government to constitute a reserved forest. Section 5 bars accrual of forest rights in the area covered by the notification under Section 4 after the issue of the notification. Section 6, inter alia, gives power to the Forest Settlement Officer to issue a proclamation fixing a period of not less than three months from the date of such proclamation and requiring every person claiming any right mentioned in Section 4 or Section 5 within such period, either to present to the Forest Scelement Officer a written notice specifying or to appear before him, and a state the nature of such right and the amount and particulars of the compensation (if any) claimed in respect thereof. Section 7 gives power to the Forest Settlement Officer to investigate the objections. Section 8 prescribes that the Forest Settlement Officer shall have the same powers as a civil court has in the trial of a suit. Section 9, inter alia, provides for the extinction of rights where no claim is made under Section 6. Section 11(1) b lays down that in the case of a claim to a right in or over any land, other than a right of way or right of pasture, or a right to forest produce or water course, the Forest Settlement Officer, shall pass an order admitting or rejecting the same in whole or in part. In the event of admitting the right of any person to the land, the Forest Settlement Officer, under Section 11(2), can either exclude such land from the limits of the proposed forest or come to an agreement with the owner thereof for the surrender of his rights or proceed to acquire such land in the manner provided by the Land Acquisition Act, 1894, Section 17 provides for appeal from various orders under the Act and Section 18(4) for revision before the State Government. When all the proceedings provided under Sections 3 to 19 are over the State Government has to publish a notification under Section 30 specifying definitely the limits of the forest which is to be reserved and declaring the same to be reserved from the date fixed by the notification.

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

31. Further attention has been drawn towards the decision of Apex Court in re: Prabhagiya Van Adhikari Awadh Van Prabhag vs. Arun Kumar Bhardwaj (Dead) through Lrs. and Ors. AIR 2021 Supreme Court 4739 referring para 22 and 24, which reads as under :

"22. We do not find any merit in the argument raised by Mr. Khan and Mr. Hooda. In the notification published on 23.11.1955, there was a declaration that land measuring 162 acres shall constitute forest land. Explanation (1) to Section 4 of the Forest Act clarifies that it would be sufficient to describe the limits of the forest by roads, rivers, ridges or other well-known or readily intelligible boundaries. The notification dated 23.11.1995 has the boundaries on all four sides mentioned therein. There is no other requirement under section 4 of the Forest Act. It is only Section 6 of the Forest Act which needs to specify the situation and limits of the proposed forest. In terms of such clause (a) of Section 6 of the Forest Act, the details of Khasra numbers which were part of 162 acres find mention in the proclamation so published. Therefore, the statutory procedural requirements stand satisfied.

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."

32. Learned State Counsel has also drawn attention of this Court towards the decision of Division Bench of this Court in re: State of U.P. vs. Kamal Jeet Singh, 2017 (9) ADJ 768 which has been passed in the same matter referring para 2 & 45, which reads as under :

"[2] The main controversy in the present writ petition relates to the title over plot Nos.15 and 21 on which the forest department of the State of U.P. agitates the matter on the ground that after Zamindari Abolition and Land Reforms Act the plots in question situated in village Baghauwa. Pargana Palia, Tehsil Nighasan, District Lakhimpur Kheri, which were earlier recorded as Jungle and Jhari on the date of vesting, were vested in the State and after that again declared as forest land, while opposite parties contends right over the plots on the ground that right of sirdari accrues in favour of Jagat Ram son of Chaudhary Ishwar Das (Jat) resident of Neara, Post Office and District Hoshiyarpur (East Punjab) and later on transferred the land in favour of respondents with all title and interest which were vested in him.

45) On the basis of above legal propositions, we conclude the present petition as follows:

I. From the date of notification under Section 4 of the U.P. Zamindari Abolition Act all the estate situate in U.P. vested in the State and stand transferred and vested in the State free from all encumbrances.

II. The land in question was previously in 1356F or before that was recorded as junglat/ghas/waste land

III. Under the provisions of Section 3 of the Forest Act. the State may constitute any forest land or waste land which is the property of the Government or over which the Government has proprietary right and declare it as reserved forest. The land in question was recorded as junglat being under the proprietary right of the State and State has every authority to declare the land as forest land.

IV. After notification of Section 4 of the Forest Act no right shall be acquired in or over the land comprised in such notification except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government. It is not a case where grant was made by the Government.

V. No right shall be alienated by a grant sale or otherwise without the sanction of the State Government. Jagat Ram had no authority to transfer the land. Thus the respondents have no better title than Jagat Ram.

VI. As reported by the revenue authorities the land was recorded as bushes or woody vegetation and it is included in forest in light of Section 38(a) & (b) of UP. Act No. XXIII of 1965

VII. After the issuance of notification under Section 4 of the Forest Act late Jagat Ram through whom respondents claim their right on the basis of a transfer deed had filed an objection under Section 6 of the Forest Act and it was decided in the year 1958 and the land was declared as forest land. Thus the dispute reached to its finality, as indicated above, and except revision before the State no authority has jurisdiction to determine the rights as contained in Section 27-A of the Forest Act

VIII. By way of measurement and by way of notification the petitioners have proved that the land in question is included in the notification under Section 4 of the Forest Act."

33. Therefore, learned State Counsel has stated that both the writ petitions may be dismissed.

34. Having heard learned counsel for the parties and having perused the material on record as well as the relevant documents so produced through instruction letter, I am of the considered opinion that the order being passed by the Consolidation Officer, Settlement Officer, Consolidation and Deputy Director of Consolidation, Lakhimpur Kheri are valid and justifiable orders passed strictly in accordance with law. In all the aforesaid orders the relevant provision of Act, 1927, more particularly section 4,5,20 and 23 have been considered.

35. Since the findings of consolidation authorities are justifiable and those findings are not perverse in any manner whatsoever, therefore, those findings may not be interfered under Article 226 of the Constitution of India. Besides, the issue in question is no more res integra as the Apex Court in re: State of U.P. vs. Dy. Director of Consolidation and others (1996) 5 Supreme Court Cases 194 and Prabhagiya Van Adhikari Awadh Van Prabhag vs. Arun Kumar Bhardwaj (Dead) through Lrs. and Ors. AIR 2021 Supreme Court 4739 has already held that after issuance of notification under section 4 of the Act, 1927 the land in question shall vest in the Forest Department and no one can claim any right or title on the basis of any subsequent patta. Further, this Court in re: Babulal (supra) has settled the controversy vide judgment and order dated 17.5.2005 and that order has not been assailed till date. Besides, the similar controversy has been adjudicated by this Court in re: Kamal Jeet Singh (supra) on 4.8.2017 and that order has also not been assailed till date. So far as the claim of the petitioners in the light of the Act, 1960 is concerned, that has also been settled that after the issuance of notification u/s 4 of the Act, 1927 in the year 1954, any subsequent patta if given under the provisions of Act, 1960 it would have no meaning and such provisions would not be binding and would have no legal effect.

36. There is one more relevant aspect in the present issue that the approval of patta which was granted on 2.7.1980 had not been granted by the competent authority inasmuch as the competent authority under section 27(3) of the Act, 1960 is Collector whereas the approval of patta in question has been granted by the Sub-Divisional Officer of the Tehsil, therefore, this is more the reason not to accept the prayer of the petitioner as the order dated 2.7.1980 granting approval of patta by the S.D.O. concerned is without jurisdictional order. Hence, the very foundation regarding the claim of the petitioner on the basis of patta has been removed, therefore, the super-structure on the basis of fact that the petitioners were having possession over the land in question on the basis of that patta would not be able to be raised, rather the same would fall on the basis of maxim 'sublato fundamento cadit opus' which means that on foundation being removed the super-structure falls.

37. The law is settled on the point that if any order is passed by the incompetent authority, de horse the statutory prescriptions, that order would be nullity in the eyes of law and would be void ab initio. Therefore, on the strength of illegal and void order no claim of the petitioners in respect of the land in question may be considered.

38. At last, it would be apt to mention that the identical persons have approached this Court time and again for seeking same relief and their writ petitions have been rejected by this Court and those orders have not been assailed before the Apex Court, therefore, those orders have attained finality.

39. Having considered the submissions of learned counsel for the parties and having regard the dictums of Apex Court in re: State of U.P. vs. Dy. Director of Consolidation and others (1996) 5 Supreme Court Cases 194 and Prabhagiya Van Adhikari Awadh Van Prabhag vs. Arun Kumar Bhardwaj (Dead) through Lrs. and Ors. AIR 2021 Supreme Court 4739 as well as the decision of Division Bench of this Court in re: Babulal (supra) and Kamaljeet Singh (supra), I am of the considered opinion that the impugned orders being passed by the competent consolidation authorities do not suffer from any illegality or perversity, therefore, those orders may not call for any interference.

40. Accordingly, the writ petitions are dismissed being devoid of merit.

41. No order as to costs.

.

(Rajesh Singh Chauhan, J.)

Order Date :- 31.5.2023

Om