Allahabad High Court
Mohd. Naimuddin And Others vs Deputy Director Of Consolidation ... on 8 January, 2020
Equivalent citations: AIRONLINE 2020 ALL 759
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 7 Case :- CONSOLIDATION No. - 3438 of 1981 Petitioner :- Mohd. Naimuddin And Others Respondent :- Deputy Director Of Consolidation Barabanki Counsel for Petitioner :- Smt. Maya Bhatta,Hargur Charan,M.A. Siddiqui Counsel for Respondent :- C.S.C. Hon'ble Rajan Roy,J.
Heard Shri Aftab Ahmad, learned counsel for the petitioners, Shri Jagdish Prasad Maurya, learned Additional Chief Standing Counsel and Shri Dileep Pandey, learned Standing Counsel for the State.
This writ petition was filed in the year 1981 challenging an order dated 25.02.1981 by which revision of the petitioners under Section 48 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as ''the Act, 1953') was rejected. Another order dated 30.04.1981 has been challenged which had been passed by D.D.C. on the review application filed by the petitioners rejecting the same on the ground that he did not have any power of review.
In the year 1996 the writ petition was amended and order dated 30.12.1958 passed by the Deputy Commissioner, Barabanki on the appeal of the State Government under Section 17 of the Indian Forest Act, 1927 (hereinafter referred to as ''the Act, 1927') as applicable to the State of U.P. was sought to be challenged by way of an amendment which was allowed by this Court on 17.10.1996, however, during the course of argument today Shri Aftab Ahmad, learned counsel for the petitioners submitted that this order has already been declared to be without jurisdiction by this Court in the earlier proceedings bearing Writ Petition No. 917 of 1972; Mohd. Mohinuddin Vs. State of U.P. and Ors. decided on 16.04.1975 which has not been put to challenge by the State and has attained finally, therefore, he does not want to press this part of the relief relating to the validity of the order dated 30.12.1958.
In view of the above, this part of the relief claimed in the writ petition is not pressed.
From the records and during the course of arguments it comes out that according to the petitioners, their father was granted a Lease which was registered on 31.07.1951 by the Zamindar in respect of certain Gatas of land including Gata No. 1447/1 and 1448/1. In pursuance to the aforesaid Lease, proceedings for mutation were initiated and Mutation Court vide order dated 30.05.1952 ordered mutation of the name of petitioners' father in respect of the Gatas in respect of which Lease was granted by the Zamindar. According to the petitioners, based on the aforesaid order the name of petitioners' father came to be recorded in Khatauni of 1359 Fasli and remained so recorded till 1366 Fasli. It is worthwhile to mention that the Lease dated 31.07.1951 is referable to 1359 Fasli, as, the Fasli year starts from 1st of July. There is not much of a dispute in this regard. On 11.10.1955 a notification was issued under Section 4 of the Indian Forest Act, 1927, by virtue of which Gatas bearing No. 1447/1 and 1448/1, which, according to the petitioners, was leased out in their favour by the Zamindar and consequently was recorded in their name vide order of the Mutation Court dated 30.05.1952, were declared that the said land apart from the other land mentioned in the notification had been decided/proposed to be constituted a Reserved Forest. Accordingly, a proposal was put-forth. By the same notification, a copy of which is annexed as Annexure No. 19 to the rejoinder affidavit of the petitioners, the Sub-Divisional Officer of Sub-Division concerned was appointed as Forest Settlement Officers under Section 1(o) of Section 4 of the Act, 1927 and Additional Commissioner, Lucknow Faizabad Division was empowered to hear appeals from orders of the Forest Settlement Officers. According to the petitioners, their father had filed objections under Section 6 of the Act, 1927 before the Forest Settlement Officer i.e. the Sub-Divisional Officer concerned of District- Barabanki, although, learned counsel for the State says that no such objection was filed. Be that as it may, the Court finds that under Section 7 of the Act, 1927 read with Section 9 thereof, even if, no claim is made under Section 6 by filing an objection. Forest Settlement Officer could ascertain from the records of the Government and evidence of any person likely to be acquainted with the same, regarding the existence of rights mentioned in Section 4 and Section 5 thereof and could acquire knowledge of existence of such rights in an inquiry under Section 7 as is mentioned in Section 9. The records of earlier proceedings especially the judgment of this Court dated 16.04.1975 rendered in Writ Petition No. 917 of 1972; Mohd. Mohinuddin Vs. State of U.P. and Ors. clearly disclose the aforesaid facts and also that the Forest Settlement Officer accepted the claim of the petitioners under Section 6 of the Act, 1927. There is some dispute about the date of this order. The Writ Court's judgment refers to it as order dated 31.08.1959. There is a letter/order of the Sub-Divisional Officer, Fatehpur dated 22.09.1958 with reference to letter of the Divisional Forest Officer, Gomti Rapti Afforestation Division, Lucknow which is annexed with the rejoinder affidavit. The said document says that the land bearing Plot No. 1447-A/1 measuring 79 bighas, 14 biswas and 6 biswansis, and Plot No. 1448-A/1 measuring 13 bighas 14 biswas i.e. total of 95 bighas, 8 biswas and 6 biswansis were the sirdari plots of Shri Mohinuddin and were wrongly notified for being taken by the Forest Department, and a correction had been ordered to be made in the village records accordingly. The reference in the said letter that a correction had been ordered to be made in the village records accordingly, is obviously a reference to the earlier order dated 31.08.1958 which has been referred in the judgment of the Writ Court. In the same letter it is mentioned that remaining area of 32 bighas, 7 biswas and 4 biswansis of 1447-A/2, and 116 bighas of Plot No. 1448-A/2 i.e. a total of 140 Bighas and 17 Biswa has been ordered to be recorded in the name of Forest Department obviously by the earlier order dated 31.08.1958 which is referred in the judgment dated 16.04.1975. After mentioning this fact the Divisional Forest Officer has been requested by the Forest Settlement Officer to take action for issuance of revised notification by the Government. This document has not been denied by the Official opposite parties inspite of three counter affidavits having been filed by them in this writ petition. Moreover, these facts are clearly borne out from the earlier judgment dated 16.04.1975 as referred above. These facts are also mentioned in the orders of the Consolidation Authority.
Now, what comes out from the records is that against the order dated 31.08.1958 passed by the Sub-Divisional Officer the State Government filed an appeal before the Deputy Commissioner, who allowed the same vide his order dated 30.12.1958 a copy of which is also annexed along with the aforesaid rejoinder affidavit of the petitioners. The order very categorically states that it is being passed in Case No. 2 of 1958. The order of the Deputy Commissioner refers that it is a revisional application, although, it must have been an appeal as no revision is prescribed under the Act, 1927 against order of the S.D.O./ Forest Settlement Officer. Nevertheless, it goes on to say that the same has been filed by the Divisional Forest Officer, Gomti Rapti Afforestation Division, Lucknow against the order dated 31.07.1958 passed by the Sub-Divisional Officer, Fatehpur. Here again in the judgment of the Writ Court the order by the S.D.O. who was the Forest Settlement Officer is mentioned as dated 31.08.1958 but in the order of the Deputy Commissioner it is mentioned as 31.07.1958 but there is no doubt as to what the proceedings were. The proceedings were from an order by which certain lands, which were included in the notification under Section 4 of the Act, 1927, were released by the Settlement Forest Officer in favour of the petitioners obviously in exercise of powers under Section 11(2)(i) of the Act, 1927 and this fact has found mentioned in all the judgments referred hereinabove. The Deputy Commissioner set-aside the order of the S.D.O., Fatehpur with the direction that the land noted above shall remain the property of the Forest Department as before. According to the petitioners, this order of the Deputy Commissioner dated 30.12.1958 was challenged by filing an application with reference to Section 22 of the Act, 1927 before the State Government which had been bestowed with revisional powers in this regard. In this regard learned counsel for the petitioners invited the attention of the Court to a communication from the State Government dated 24.09.1959 mentioning the receipt of an application dated 27.08.1959 which was said to be under consideration. According to the learned counsel for the petitioners reference therein to the application is in fact a reference to the revision filed by the petitioners' father, although, he says that copy of the revision is not available. However, he invites the attention of the Court to the order of the Deputy Director of Consolidation wherein the statement of the Officials of the Forest Department, who were parties before him, has been recorded that against the order of the Deputy Commissioner dated 30.12.1958 a revision was pending consideration before the State Government which according to him is a corroboration of his assertion as aforesaid as also of the letter of the Government dated 24.08.1959.
Be that as it may, it is this order of the Deputy Commissioner dated 30.12.1959 which found favour with the Consolidation Officer, the Settlement Officer, Consolidation and ultimately the Deputy Director of Consolidation, who, vide their orders dated 12.01.1970, 13.10.1971 and 14.02.1972, rejected the objections/claim of the petitioners for striking off the entry in basic year Khatauni which was in favour of the Forest Department in respect of the land in dispute, as, according to all these consolidation Courts the said order had attained finality between the parties. The matter came up to this Court as stated earlier by means of Writ Petition No. 917 of 1972 which was filed by the petitioners' father and this Court found that the order of the Deputy Commissioner dated 30.12.1958 which had been passed under Section 17 of the Act, 1927 and which formed the basis for the orders impugned before the Writ Court which was passed by the Consolidation Officer, was without jurisdiction and accordingly, it was declared as being without authority of law. Though, the Writ Court in its judgment dated 16.04.1975 did not give reasons as to why it found it to be so, the reasons are not far to see as in the notification under Section 4 of the Act, 1927 itself, as mentioned earlier, the State Government exercising its powers had notified the Additional Commissioner Lucknow Faizabad Division as the authority competent to hear the appeal. The Additional Commissioner was an Officer higher in rank than the Deputy Commissioner, therefore, it appears the Court held it to be so. It is true that the order of the Deputy Commissioner was not directly under challenge before the Writ Court, but, then, it is equally true that orders of the Consolidation Officers were based on the order of the Deputy Commissioner which apparently was without jurisdiction, therefore, the Writ Court declared it to be so obviously to do substantial justice between the parties and as an order passed without jurisdiction is a nullity in the eyes of law. Most importantly, the State never challenged the judgment dated 16.04.1975, therefore, the said judgment has attained finality between the parties and the findings/conclusions drawn therein can not be assailed by the State nor have they been sought to be assailed in these proceedings.
This Court while hearing this writ petition on the earlier occasions had asked the State Government vide order dated 28.08.2019, inter alia, as to whether against the order of the Sub-Divisional Officer which was in favour of the petitioners, any proceedings were taken by the Forest Department before the competent Authority/Court under the Indian Forest Act, 1927 after the decision of the Deputy Commissioner dated 30.12.1958 had been held to be without jurisdiction by this Court in the earlier round of litigation vide its judgment dated 16.04.1975, if so, what was the result thereof, but inspite of sufficient opportunity the State neither filed any affidavit answering the queries nor produced any document in this regard. As such on 03.01.2020 this Court passed the following order:-
"In spite of the order dated 28.8.2019, the relevant records have not been produced before this Court and every time opportunity is being sought as is evident from the subsequent orders also, therefore, adverse inference is to be drawn against the concerned opposite parties whenever the matter is taken up.
List/ put up on 7.1.2020."
Even today, neither any affidavit has been filed nor any attempt has been made to answer the queries made in the order dated 28.08.2019. In this view of the matter, adverse inference is drawn against the State, and it is accordingly inferred that the order of the Sub-Divisional Officer which was in favour of the petitioners as noticed by this Court in the earlier judgment dated 16.04.1975 and which was challenged before the Deputy Commissioner whose order was declared to be without jurisdiction, were never challenged before any higher forum.
It is not out of place to mention that till date no notification has been issued under Section 20 of the Act, 1927 declaring the aforesaid Gatas bearing No. 1447/1 and 1448/1 as reserved forest land so as to confirm the proposal under Section 4. It is also true as informed by Shri Maurya, learned Additional Chief Standing Counsel that inspite of order of the S.D.O./Forest Settlement Officer and his letter dated 22.09.1958 referred hereinabove the notification under Section 4 has not been revised but this is immaterial for the reason that an adjudication by the Forest Settlement Officer and the Court even if it has not been complied by the State Government will hold the field and the notification will be treated to have been modified accordingly in terms of the statutory orders passed by the competent authority and the order of the Writ Court dated 16.04.1975.
Vide judgment dated 16.04.1975 the Writ Court interfered with the order of the Deputy Director of Consolidation on the ground that the main basis of the order was the illegal and void order passed by the Deputy Commissioner, accordingly, the Writ Court remanded the matter back to the Deputy Director of Consolidation for consideration of the revision afresh with the observation that he shall see as to whether the Lease granted by the Zamindar in favour of the petitioners had been acted upon or not and whether the land continued to be a forest. It was also observed that if necessary, the Deputy Director of Consolidation may remand the case to the Consolidation Officer for taking evidence on this point. The petition of the petitioners' father was accordingly allowed and the order of the D.D.C. dated 14.02.1972 was set-aside.
After remand the Deputy Director of Consolidation considered the matter afresh. It however so happened that for some reason the original copies of documents including lease etc. which were filed by petitioners' father were taken back by him and after remand the same could not be filed again. When confronted the learned counsel for the petitioners submitted that this was on account of fact that the petitioners' father died on 07.02.1979. Thereafter, the petitioners who are his sons got substituted in his place but they were not aware of the fact that the original documents had been taken back by their father. In this scenario the Deputy Director of Consolidation found that the Lease, though, it had been filed by the petitioners had been taken back and had not been filed again inspite of several dates being fixed in the matter. He also found that possession of the petitioners was not proved, although, in his order he has mentioned that during ''partal' they were found to be in possession and had also paid rent firstly to the Zamindar and thereafter to the Government. For these reasons he has dismissed the revision of the petitioners and his order is impugned before this Court.
Now, before this Court the petitioners have filed copy of the Lease etc. and have also offered an explanation for not filing the same before the D.D.C. as aforesaid.
It is also not out of place to mention that all these documents which could not be filed before the D.D.C. were subsequently filed along with a review application which was dismissed on the ground that the D.D.C. did not have any power to review his order, as already stated.
Now, after hearing the learned counsel for the parties and perusing the records what comes out is that the order of the Deputy Commissioner, which was the basis for denying the claim of the petitioners by the Consolidation Courts, has been declared to be without jurisdiction by this Court way back on 16.04.1975 in the earlier writ petition and the said judgment has attained finality and there is no other order passed by any other higher authority or Court which may have set-aside the order of the Sub-Divisional Officer/First Settlement Officer which was admittedly in favour of the petitioner having been passed under the Act, 1927, even though a copy of it is not on record of this writ petition and has not been produced by the State inspite of order of this Court dated 28.08.2019 and 05.09.2019 which compelled the Court to pass the order dated 03.01.2020 regarding adverse inference as already referred earlier. This factual scenario is unrebutted.
Though, copy of the Lease is on record this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India is not empowered to appreciate evidence and record findings of fact based thereon, especially, as the language of the Lease is not very clear.
It is also not in dispute that based on the order of the Sub-Divisional Officer, who was the Forest Settlement Officer as per Notification dated 11.10.1955, the name of the petitioners' father was entered in the revenue records in respect of Gatas No. 1447/1 and 1448/1 in 1359 Fasli i.e. the Khatuani prepared in the year of vesting and it continued to be so recorded till 1363 Fasli or 1366 Fasli. It is also not in dispute that the land in dispute was recorded as forest land in favour of the Forest Department of the Govt. of U.P. only because of the order of the Deputy Commissioner dated 30.12.1958 which has already been declared void vide judgment dated 16.04.1975. Thus, as far as basic year entry in favour of the Forest Department in respect of the land in dispute referred hereinabove is concerned, the same was susceptible to challenge unless there was any other factual and legal basis to sustain it, but, the Deputy Director of Consolidation while passing the impugned judgment on 25.02.1981 has failed to consider this aspect of the matter. He was greatly persuaded by the fact that the Lease, which was initially filed by the petitioners, was not on record. The circumstances in which the Lease could not be filed have already been dealt with hereinabove. The copy of the Lease is on record of the writ petition. Had the Lease been on record then the D.D.C. would have had an occasion to consider relevant aspects of the matter as referred hereinabove, which he has not considered.
It is not the case of the State that the land in dispute had vested in the State in view of Section 4 read with Section 6 or any other provision of the Act, 1950. The case of the State throughout has been that the land was declared to be reserved forest land under Section 4 and it came to be recorded in the name of the Forest Department based on the order of the Deputy Commissioner dated 30.12.1958 which as stated earlier was declared to be void by this Court way back in 1975.
The land in dispute was recorded in the name of Forest Department only after passing of the order dated 30.12.1958.
In view of the above discussion, the matter requires reconsideration by the D.D.C. The first question to be considered by the D.D.C. is the basis for recording the land as Forest Land in the eyes of law. Assuming he finds absence of any factual and legal basis this by itself would not entitle the petitioners to get their name recorded in respect thereof and an adjudication would be required with regard to their entitlement based on the alleged Lease issued by the Zamindar, the mutation order passed thereafter and also the points considered by this Court in its earlier judgment dated 16.04.1975 as to whether the said Lease was acted upon. The question which would fall for consideration is as to what rights accrued to the petitioners, if at all such a Lease was executed and mutation order had been passed in terms of the U.P. Zamindari Abolition and Land Reforms Act, 1952. Whether at all any rights accrued or the land in question vested in the State under Section 4 read with Section 6 of the said Act, 1952 or Whether the land was even otherwise liable to be recorded as Forest Land under the Act, 1927 as per law. This aspect of the matter has not been examined by the Consolidation Officer, S.O.C. and the Deputy Director of Consolidation. In this context it is relevant to refer to Section 8 of the Act, 1950 so as to avoid further confusion, complication and multiplicity of litigation in this regard. Section 8 of the Act, 1950 reads as under:-
"8. Contract entered into after August 8, 1946, to become void from the date of vesting.- Any contract for grazing or gathering of produce from land or the collection of forest produce or fish from any forest or fisheries entered into after the eighth day of August, 1946, between an intermediary and any other person in respect of any private forest, fisheries, or land lying in such estate shall become void with effect from the date of vesting.
Summary.- Any contract between an intermediary and any other person made after the 8th day of August, 1946, shall become void from the date of vesting, if it provides for :
(a) grazing,
(b) gathering of produce from land lying in the estate so vested,
(c) the collection of forest produce from any private forest, and
(d) fish from any fisheries."
During the course of arguments a query was put by the Court as to whether the Lease by the Zamindar, who was an intermediary within the definition of the term under the Act, 1950, in favour of the petitioners' father was hit by Section 8, no satisfactory reply could be given by either of the parties, however, the Court finds that there is a Division Bench judgment of this Court reported in 1960 RD 337; Raghunath Singh and Anr. Vs. State of U.P. and Anr. wherein it has been held that Section 8 is not attracted in the case of Leases of land where the purpose of the lease is to use the land for the purpose of agriculture. A lease of land for the purpose of cultivation which confers on the lessee not merely a right in the land but also the right to exclusive possession of the land and to turn it to cultivation, is not a transaction covered by Section 8. Hence, where the land was agricultural purpose the lessee acquired at first a status of hereditary tenant and later when the U.P. Zamindari Abolition and Land Reforms Act was enforced of Sirdar of the lands therein transferred. Relevant extract of the said judgment is quoted herein below:-
"In our opinion Section 8 is not attracted in the case of leases of land where the purposes of the leases is to use the land for the purpose of agriculture, horticulture, pisciculture etc. It is sometimes unavoidable that in the process of using the land for these purposes reclamation also is done and what is known as forest produce is collected or removed in the process. Land must be cleared of unwanted growth to turn it usefully to agriculture etc. The mere fact that these operations are necessarily involved in making the land agriculture worthy will not take away from the transaction their true nature as leases of land. A contract for the collection of forest produce must in order that it may be such a transaction be contract essentially for the collection etc. of the produce. It will not be such a contract if the removal etc. of the forest has to be done to make the land agriculture worthy- the object and purpose of the lease. In the instant case, admittedly the leases were for using the land for purpose of agriculture and horticulture etc. As a matter of fact the lessees were also entered as hereditary tenants of the lands and later after the abolition of zamindaris as sirdars. They have been paying the land revenue also assessed on them to the Government. It is not possible in these circumstances to hold that the leases were contracts for the collection of forest produce. The contract referred to in Section 8 does not contemplate the conferment on the promises any right in or over land, it, on the other hand, merely refers to the right to collect forest produce or to perform certain acts over the land. A lease of land for the purpose of cultivation which confers on the lessee not merely a right in the land but also the right to exclusive possession of the land and to turn it to cultivation, is not a transaction covered by Section 8. It is not possible under the circumstances to accept that the leases in favour of the petitioners were void under Section 8 of the U.P. Zamindari Abolition and Land Reforms Act. Being leases for agriculture purposes the lessees acquired, at first the status of hereditary tenants and later when the Zamindari Abolition and Land Reforms Act was enforced of sirdars of the lands therein transferred."
On a bare perusal of Section 8 of the Act, 1950 what comes out is that any contract between an intermediary and any other person made after the 8th day of August, 1946 which is the date on which the United Provinces Legislative Assembly resolved to abolish the zamindari system in principle, shall become void from the date of vesting, if it provides for :
"(a) grazing,
(b) gathering of produce from land lying in the estate so vested,
(c) the collection of forest produce from any private forest, and
(d) fish from any fisheries."
None of the Courts below have considered as to whether the Lease in question would be hit by Section 8, therefore, this discussion has been made only to throw some light on the legal position in this regard so that while reconsidering the matter, as, this Court proposes to remand it back to the D.D.C., this aspect shall also be kept in mind along with the inter play of other provisions of the Act, 1950 by which new tenures were sought to be created. The concept of Adhiwasi was also introduced in the Act, 1950 sometimes in 1952 which will also have to be kept in mind. The relevant dates will have to seen in the matter, chronologically.
Learned counsel for the State was asked as to the status of the revision alleged to have been filed by the petitioners but he stated that on account of lapse of time it is not possible to trace out the same and is not available.
In view of the above discussion, the order of the Deputy Director of Consolidation is accordingly set-aside. The revision of the petitioners shall stand restored once again. The petitioners and the opposite parties shall put in appearance before the Deputy Director of Consolidation on 10.02.2020. Thereafter, the proceedings shall be held keeping in mind the observations made hereinabove and also the observations made by the Writ Court earlier vide its judgment dated 16.04.1975.
The petitioners claim to have filed the Lease and other documents before the D.D.C. along with the review application. If the same are available on record the same shall be taken into consideration. Otherwise it shall be open for the petitioners to again file the said documents if the occasion so requires.
It is however, made clear that the claim of the petitioners which is to be considered, shall be restricted to only two Gatas bearing No. 1447/1 and 1448/1, as, it is only these two Gatas regarding which claim was raised by the petitioners' father in the consolidation proceedings in the first place, in his objections, a copy of which has been filed with the counter affidavit.
The Deputy Director of Consolidation shall make an earnest endeavour to complete the proceedings, after remand, within a period of one year from the date of submission of a certified copy of this order before him.
The writ petition is allowed in part in the aforesaid terms.
Order Date :- 8.1.2020
R.K.P. (Rajan Roy,J.)