Allahabad High Court
Shivprasad vs State Of U.P. And 2 Others on 4 March, 2020
Equivalent citations: AIR 2021 ALLAHABAD 50, AIRONLINE 2020 ALL 2371, AIRONLINE 2020 ALL 2563
Author: Ajay Bhanot
Bench: Ajay Bhanot
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 3 Case :- MATTERS UNDER ARTICLE 227 No. - 1732 of 2020 Petitioner :- Shivprasad Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Yogesh Kumar Mishra Counsel for Respondent :- C.S.C. Hon'ble Ajay Bhanot,J.
1. The petitioner took out the proceedings under Section 9/11 of the Indian Forest Act, 1927 objecting to the declaration of the disputed land as "reserved forest" under Section 4 of the Indian Forest Act, 1927. The proceedings, registered in the year 2013 under Section 9/11 Indian Forest Act, 1927, registered as Misc. Case no. 1564 of 2013 (Shiv Prasad Vs Forest Department) before the Forest Settlement Officer, Obara, Sonebhadra, were rejected by order dated 28.06.2016. The petitioner carried the said order in appeal under Section 17 of the Indian Forest Act, 1927, registered as Misc. Civil Appeal No. 92 of 2016 (Shiv Prasad Vs. Forest Department) before the learned Additional District Judge, Anpara at Obara, District-Sonebhadra. The appeal was dismissed by order dated 22.03.2018.
2. The petitioner has assailed the order dated 28.06.2016 passed by the Forest Settlement Officer, Sonebhadra as well as the order dated 22.03.2018 passed by the learned appellate court in this petition.
3. Sri Yogesh Kumar Mishra, learned counsel for the petitioner submits that the authority of first instance and learned appellate court have erred in law by taking a hyper technical view in the matter of limitation where rights of most substantive nature are involved. Further, the impugned orders have misread the statute and the learned courts below acted contrary to law. He relies on the law laid down by this Court in the case of Hardayal Vs. District Judge and others, reported at 1972 ALJ 649.
4. Per contra, the learned Standing Counsel submits that the period of limitation for filing of objections had expired. The inordinate delay could not have been condoned. The objections of the petitioner were rightly rejected by the authorities below.
5. Heard learned counsel for the parties.
6. The Forest Settlement Officer in the judgment and order dated 28.06.2016 has set forth these reasons for rejecting the objections filed by the petitioner. The last date for submission of objections was 31.07.1987. The objections were tendered by the petitioner after an inordinate delay in the year 2013. The objections were found to be barred by limitation and vitiated by laches. Consequently, the objections were dismissed on grounds of delay and laches alone.
7. The learned appellate court made these findings of facts. The disputed lands are ancestral property of the petitioner. The appellant (plaintiff / petitioner) has been in possession over the disputed plots of land, since the time of his ancestors. The land was used for residential purposes as well for agricultural activities. The appellant (plaintiff / petitioner) was not aware of the notification proceedings, which caused in the delay in taking objections under the Indian Forest Act, 1927, before the competent authority. The learned appellate court noticed that the petitioner had tendered his objections, before the Forest Settlement Officer, Sonebhadra on 28.06.2016.
8. The notification under Section 20 of the Indian Forest Act, 1927 was published on 09.07.2016. The learned appellate court found that the appellant (plaintiff / petitioner) had registered his objections/case, prior to the publication of the gazette under Section 20 of the Indian Forest Act, 1927. However, by virtue of publication of the gazette, the land has already been declared as "reserved forest". The learned appellate court opined, that it did not possess the jurisdiction to amend, change or annul the notification. After land was declared as "reserved forest", the learned appellate court ceased to possess the jurisdiction to entertain the appeal. On this foot the appeal was dismissed.
9. At this stage, a consideration of the scheme of the Act and authorities in point would be apposite. Section 4 of the Indian Forest Act, 1927 contemplates a notification by the State Government to constitute the land as "reserved forest land". The provision speaks thus:
"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."
10. Objections to such notification and claims of aggrieved persons are examined under Section 6 of the Act which is reproduced hereunder:
"6. Proclamation by Forest Settlement-officer.-When a notification has been issued under section 4, the Forest Settlement-officer shall publish in the local vernacular in every town and village in the neighbourhood of the land comprised therein, a proclamation-
(a) specifying, as nearly as possible, the situation and limits of the proposed forest;
(b) explaining the consequences which, as hereinafter provided, will ensue on the reservation of such forest; and
(c) 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 Settlement-officer a written notice specifying or to appear before him and state, the nature of such right and the amount and particulars of the compensation (if any) claimed in respect thereof."
11. Section 9 protects the extinction of the rights of persons, who have instituted objections before the notification under Section 20 of the Act, is published. The provision being relevant to the controversy is reproduced hereunder:
"9. Extinction of rights.-Rights in respect of which no claim has been preferred under section 6, and of the existence of which no knowledge has been acquired by inquiry under section 7, shall be extinguished, unless before the notification under section 20 is published, the person claiming them satisfies the Forest Settlement-officer that he had sufficient cause for not prefer-ring such claim within the period fixed under section 6."
12. Section 17 of the Act provides for the remedy of appeal against the orders passed under Sections 11, 12, 15 an 16 of the Act.
"17. Appeal from order passed under section 11, section 12, section 15 or section 16.-Any person who has made a claim under this Act, or any Forest-officer or other person generally or specially empowered by the State Government in this behalf, may, within three months from the date of the order passed on such claim by the Forest Settlement-officer under section 11, section 12, section 15 or section 16, present an appeal from such order to such officer of the Revenue Department of rank not lower thanthat of a Collector, as the State Government may, by notification in the Official Gazette, appoint to hear appeals from such orders:
Provided that the State Government may establish a Court (hereinafter called the Forest Court) composed of three persons to be appointed by the State Government, and when the Forest Court has been so established, all such appeals shall be presented to it."
13. The proceedings attain finality after publication under section 20 of the Act which states so:
"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."
14. The narrative shall now be reinforced by authorities in point. This Court in Hardayal (supra) upon comprehensive consideration of the scheme of the Indian Forest Act, 1927, held that Section 6 of the Indian Forest Act, 1927 cannot be equated within a period of limitation fixed under the Limitation Act :
"6. Section 7 of the Act, casts a duty on the Forest Settlement Officer to investigate, enquire into, and find out the claims of every person as far as possible whether or not he has filed a claim within the period fixed in the proclamation issued under Section 6. This indicates that it is open to the Forest Settlement Officer to accept the claim to a right in the land whether or not the person concerned has preferred it within the period fixed in the proclamation. According to Section 9 of the Act, rights in respect of which no claim has been preferred under Section 6 and of the existence of which no knowledge has been acquired by the Enquiry Officer under Section 7, shall be extinguished unless before the notification under Section 20 is published, the person claiming them satisfies the Settlement Officer that he had sufficient cause for not preferring such claim within the period fixed under Section 6. This section clearly indicates that the Forest Settlement Officer retains the jurisdiction to enquire into and accept a claim to any right in the land sought to be included in the proposed reserved forest, right upto the time a notification under Section 20 is published. A claimant who could not approach the Forest Settlement Officer within the period fixed in the proclamation under Section 6 can still persuade him to look into their claims after satisfying him that he had sufficient cause for not preferring it within that period. Law nowhere requires that this satisfaction has to be recorded or that the claimant should explain his inability to prefer the claim earlier by means of a formal application praying for condonation of delay.
7. It is significant to note that the claim mentioned in Section 6 can be made either by way of a notice in writing or orally. Section 9 merely provides that if a claim is made beyond the period mentioned in the proclamation issued under Section 6 it can be entertained by the Forest Settlement Officer provided he is satisfied that there was sufficient cause for not preferring it within the period fixed in Section 6. There is no reason to think that the claim at the stage of Section 9 can also not be made in either of the two ways. If the Settlement Officer can proceed to enquire into an oral claim, there is no reason to think that the Legislature contemplated that the explanation offered by the claimant for not preferring the claim within the period fixed under Section 6 should be given by means of a formal application for condoning the delay in preferring it. Provisions or Section 9 would be fully complied with if the claimant orally explains the reason for his not preferring the claim earlier and the Forest Settlement Officer entertains the claim after, being satisfied by that explanation. The law does not require that this satisfaction must be recorded in writing. Although it would be much better if in such cases, the Forest Settlement Officer makes some sort of record to indicate that he was so satisfied, but if no such record is made it would not necessarily mean that the claim has been entertained without the Forest Settlement Officer being satisfied that there was sufficient cause for not preferring it within the time fixed in the proclamation issued under Section 6 of the Act. Normally, in a case where such a claim has been entertained it should be presumed that an explanation for the delay was given by the claimant and the same was accepted by the Forest Settlement Officer."
15. The Forest Settlement Officer in the order dated 28.06.2016 has noticed the objection of the petitioner. The petitioner specifically objected that the forest department had not served the notice upon him, nor was any notice posted at prominent public places in the village. The disputed plots were never identified. The notification was also not publicized by beat of drum. In absence of publicity of the notice, the petitioner could derive no knowledge of the proceedings under Section 4 of the Indian Forest Act, 1927.
16. In the objections under Section 9/11 of the Indian Forest Act, 1927 before the Forest Settlement Officer, Sonebhadra the petitioner also categorically stated that he resides in a far flung and remote village. The order dated 28.06.2016 shows that the Forest Settlement Officer, Sonebhadra did not consider any of the reasons for the delay cited by the petitioner in approaching the authority. There is nothing in the record to establish that the reasons canvassed by the petitioner for the delay, were disputed with material facts and evidence.
17. The petitioner is a poor villager, residing in a far flung and remote village. By stating that adequate publicity was not given to the notification under Section 4, due to which he could not get knowledge of the same, he discharged his burden of proof. The burden thereafter lay upon the forest authorities, to dispute the reasons for delay with material facts and cogent evidence. The department on its part, merely took a vague ground before the Forest Settlement Officer, Sonebhadra, that the disputed land is under the management of the Forest Department. However, no credible documentary evidence has been tendered to establish the aforesaid fact. The manner and material to publicize the notification to reach poor villagers in remote areas was not brought in the record.
18. In the light of this narrative, this Court finds that the Forest Settlement Officer in its order dated 28.06.2016, erred in law by neglecting to consider the reasons taken by the petitioner for the delay caused in instituting the proceedings.
19. The learned appellate court while considering the issue of condonation of delay, did not redeem the gross illegality committed by the Forest Settlement Officer. The learned appellate court also completely neglected to consider the grounds for the delay, in instituting the proceedings. Moreover, the learned appellate court also returned contradictory findings. The appellate court held that the appellant-petitioner was not a party in the earlier proceedings, but relied on the same to non suit the petitioner.
20. Upon perusal of the judgments of the court below and also the records of the case, this Court feels that the grounds for delay were sufficient and liable to be condoned. These grounds were not adequately contested by the authorities, in the proceedings before the courts below. In order to curtail litigation, this court deems it appropriate to condone the delay in the facts of this case. The trial court shall consider the matter without going into the issue of delay.
21. The second issue, which arises from the finding of the appellate court that it is divested of its jurisdiction, after the notification, shall now be considered.
22. The perusal of Section 17 of the Indian Forest Act, 1927 discloses that there is no fetter on the appellate powers as observed by the learned appellate court. The learned appellate court misdirected itself in law, by finding that the publication of a notification under Section 20 of the Indian Forest Act, 1927 would divest it of its appellate powers. The appeal was preferred much prior to the publication of the notification dated 09.07.2016, issued by the State Government under Section 20 of the Indian Forest Act, 1927.
23. The remedy of statutory appeal is a substantive remedy. Moreso, in this case where the rights of a section of the citizenry, which is residing in abject conditions in remote areas, and primarily surviving on agriculture or living off the land. This remedy of appeal cannot be rendered illusory, by a restrictive interpretation of the statute, as was done by the learned appellate court. The rights of the appellant, which are pending adjudication in appeal under the Indian Forest Act, 1927, cannot under any circumstance be defeated by issuance of notification under Section 20 of the Indian Forest Act, 1927. The proposition that the remedy of appeal, would stand extinguished upon publication of notification under Section 20 of the Indian Forest Act, 1927, runs counter to the scheme of the Act, which zealously protects the rights of the forest people.
24. The basic premise of the judgment of the learned appellate court, may be tested from other angles as well. A notification under Section 20 of the Indian Forest Act, 1927 during pendency of the proceedings before the Forest Settlement Officer, or before the learned appellate court cannot cause the extinction of the rights of the petitioner. There is no fault of the petitioner. The adjudicatory proceedings pending, either before the authority of the first instance, or the appellate authority, cannot be simply terminated or pre-empted by a notification under Section 20 of the Indian Forest Act, 1927. The rights of the petitioner and forest people, protected under the Act, are too valuable, to be undermined in such manner which is contrary to the Act.
25. There is good authority, which holds appeal to be a continuation of the suit, or proceedings of first instance. In an appeal the entire lis is brought before the appellate court. The appellate court can interdict the findings of fact and law rendered by the trial court. The right of appeal is a substantive one and is in the nature of a vested right. The right of appeal cannot be fettered or taken away, unless diluted or abrogated by express provision or necessary implication in the statute. In this case no such limitation on the right of appeal exists.
26. The scope of right of appeal, was pronounced authoritatively by the Hon'ble Supreme Court in Garikapati Veeraya Vs. N.Subbiah Choudhry and others, reported at AIR 1957 SC 540 by stating thus:
"From the decisions cited above the following principles clearly emerge:
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive right.
(1) A.I.R. 1954 Mad. 543.
(2) I.L.R. 1955 Bom. 530.
(3) A.I.R. 1955 Bom. 332; 57 Bom. L.R. 304.
(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved, to the parties thereto till the rest of the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise."
27. This Court in Dilwar Singh Vs. The Gram Samaj and others reported at AIR 1973 All 411 also defined the nature of right of appeal.
28. In Dilawar Singh (supra), the Division bench of this Court recorded the tenure-holder (Smt. Tulsa) and had taken proceedings under the Consolidation of Holdings Act.
29. The Consolidation Officer upheld the claim of one Dilawar Singh (the applicant before this Court) while rejecting the case of the contesting parties. The contesting respondents preferred an appeal under the Consolidation of Holdings Act, which came to be allowed by the learned appellate court, namely, Settlement Officer (Consolidation). The order of the learned appellate court / Settlement Officer (Consolidation) was taken in revision on 12th December, 1963. Before the revision was filed, a notification under Section 52 of the Act bringing the consolidation operations to a close was issued on 7th December, 1963. The revision was dismissed on the foot that after notification under Section 52 of the Act, the revision could not be entertained.
30. The learned Division Bench in Dilawar Singh (supra) defined the breadth of rights of the parties in an appeal, second appeal or revision in these terms.
"A proceeding whether initiate ed through a suit or an application embraces within its ambit all the rights available to a party by way of appeals, second appeals or revisions."
31. Thereafter, on high authority regarding the ambit of appellate rights the learned Division Bench in Dilawar Singh (supra) held thus:
"Applying this principle it has to be held that on the filing of a claim or objection before the Consolidation Officer, certain rights vested in a party to take the proceeding to the superior authorities. That right could not be taken away by a subsequent enactment unless it was expressly or by necessary implication so provided. There is nothing in Section 52 of the Act which either expressly or by necessary implication takes away that right."
32. A situation which is closer to the facts of this case had arisen before this Court in Gopi Singh and others Vs. Deputy Director of Consolidation Bulandshahr and others, reported at 1967 ALJ 439. Even at the time the objections were on the foot before the authority of the first instance, namely, the Consolidation Officer, a notification under Section 52 of the Consolidation of Holdings Act, was published on 22nd May, 1965. The order passed by the Consolidation Officer was carried in appeal after the publication of the notification under Section 52 of the Act. The Deputy Director (Consolidation) in revision held that the appeal was not maintainable in view of the notification under Section 52 of the Consolidation of Holdings Act which pre-date the appeal.
33. In such factual backdrop this Court in Gopi Singh (supra) found the appeal to be maintainable despite prior publication of notification under Section 52 of the Consolidation Holdings Act bringing the consolidation proceedings to a final terminus by holding :
"The term 'proceedings' in Section 52 (2) has, in my opinion, been used in that comprehensive sense to include the entire series of proceedings commencing from the one which is initiated before the Consolidation Officer and including that taken in the appeal Court. When an appeal is instituted the proceeding which commenced in the trial Court continues. The appeal does not initiate a fresh proceeding. On the institution of the appeal the proceedings which have become dormant on the decision by the trial Court, revive and remain pending. The only difference being that it is now pending in a different Court, namely, the Court of appeal."
34. It was further observed:
"The word 'cases' in the phrase 'cases of writs filed under the Constitution', in Sub-section (2) will include orders passed by higher Courts of appeal including the Supreme Court. Thus, Sub-section (2) is designed to preserve and make effective orders passed by any one or more of the hierarchy of Courts established under the Act, irrespective of whether the proceeding was pending in any particular Court or in any Court subordinate thereto, on the date of issue of the notification in Sub-section (1)."
We are in agreement with the view taken in the aforesaid case."
35. These authorities apply to the facts of the case and shall govern the fate of the order of the learned appellate court.
36. The notification issued during the pendency of the appeal, did not divest the learned appellate court of its jurisdiction to deal with the appeal on its merits. The learned appellate court erred in law by dismissing the appeal, on the foot that the jurisdiction of the learned appellate court ceased to exist, after the notification was issued by the State Government on 09.07.2016.
37. The order dated 28.06.2016 passed by the respondent No.2/Forest Settlement Officer, Sonebhadra as well as the order dated 22.03.2018 passed by the learned Additional District Judge, Anpara at Obara, District-Sonebhadra are arbitrary and illegal and liable to be set aside and are set aside.
38. The petition is allowed.
39. The matter is remitted to the Forest Settlement Officer, Sonebhadra for a fresh consideration in the light of the above said directions.
40. The possession of the petitioner having arazi No. 536 ka, Area 4-0-0 bigha situated in village- Parsoi, Pargana-Agori, Tehsil-Robertsganj, District-Sonebhadra, shall not be disturbed till a decision of the Forest Settlement Officer, Sonebhadra. The petitioner shall use the land only for agricultural, forestry and residential purposes till the aforesaid decision.
Order Date :- 4.3.2020 Pravin