Allahabad High Court
Ram Narayan Singh (Since Deceased) And 4 ... vs State Of U.P. And 4 Others on 10 April, 2023
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 6 Case :- WRIT - C No. - 11633 of 2023 Petitioner :- Ram Narayan Singh (Since Deceased) And 4 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Narayan Dutt Shukla,Rituvendra Singh Nagvanshi,Sr. Advocate Counsel for Respondent :- C.S.C Hon'ble Pankaj Bhatia,J.
Heard Sri Rituvendra Singh Nagvanshi, learned Counsel for the petitioner and learned Standing Counsel.
The present petition has been filed challenging the order dated 10.11.2022 whereby the recall application filed by the petitioners seeking recall of the order dated 01.10.1991 has been rejected. The petitioners have also challenged the order dated 27.09.1990 passed by the Forest Settlement Officer.
The contention of the Counsel for the petitioners is that petitioners claim to be the owner of the land in question by virtue of the names of predecessor in interest recorded in the revenue record. It is stated that an order came to be passed against the petitioners on 27.09.1990 whereby the claim of the petitioners with regard to the ownership and possession did not find favour with the Forest Settlement Officer. No appeal was preferred by the predecessor in interest of the petitioners against the said order, however, in view of the judgment of the Hon'ble Supreme Court in the case of Banwasi Sewa Ashram vs State of U.P. and others; AIR 1987 SC 374, all such orders were directed to be placed before the Additional District Judge and were to be treated as suo moto appeal.
In the light of the said judgment, the matter was placed before the Additional District Judge as an appeal under Section 17 of the Indian Forest Act, 1927. The said appeal was decided by means of an order dated 01.10.1991, wherein, it was recorded that on perusal of the records, the order passed by the Forest Settlement Officer is upheld. The petitioners were not aware of the said order and subsequently, after a lapse of substantial time, moved an application along with delay condonation application seeking recall of the order dated 01.10.1991 mainly on the ground that the predecessor in interest of the petitioners was never issued notice prior to passing of the order dated 01.10.1991. The said application was accompanied by a delay condonation application under Section 5 of the Indian Limitation Act. The said delay condonation application was allowed vide order dated 14.07.2018 and the matter was thereafter heard on merit. The restoration application/ recall application filed by the petitioner came to be dismissed vide order dated 10.11.2022 mainly on the ground that parties were heard by the Forest Settlement Officer which led to passing of the order dated 27.09.1990. The said order is under challenge before this Court.
The Counsel for the petitioner argues that once the appeal was entertained in terms of the directions issued by the Hon'ble Supreme Court, it was incumbent upon the appellate authority to decide the appeal in terms of the mandate of Section 18 of the Indian Forest Act, which admittedly has not been done in the present case, as is clear from the perusal of the order dated 01.10.1991. The Section 18 of the Indian Forest Act as amended in the State of U.P. is as under:
"18. Appeal under Section 17 - (1) Evey appeal under section 17 shall be made by petition in writing and may be delivered to the Forest Settlement Officer, who shall forward it without delay to the District Judge.
(2) The District Judge may, after giving to the parties an opportunity of being heard, confirm, set aside or modify the order under appeal, or remand the case to the Forest Settlement Officer with such directions as he thinks fit.
(3) During the pendency of the appeal the District Judge may, for sufficient cause, stay, on such terms, if any, as he thinks fit, the operation of the order appealed from and pass any incidental or consequential order.
(4) The order passed on the appeal shall, subject to the provisions of Section 22, be final." U.P. Act 23 of 1965, S.6 (w.e.f. 23.11.1965)."
In view of the clear mandate as prescribed in Section 18(2), it was incumbent that the parties are heard before the appeal is decided, which clearly has not been done. The impugned order clearly records that the parties were heard before the Forest Settlement Officer. The said view is clearly erroneous in view of the fact that the requirement of hearing of appeal is specified in Section 18(2), thus, no useful purpose would be served keeping the matter pending. The order date10.11.2022 is in clear ignorance of mandate of Section 18(2) and is hereby set aside.
The matter is remanded back to the appellate Court to hear and decide the appeal a fresh, in accordance with law, after recalling the order dated 01.10.1990.
The appellate authority shall heard the appeal on merit and decide the same expeditiously, in accordance with law.
The writ petition is allowed in terms aforesaid.
Order Date :- 10.4.2023 akverma