Allahabad High Court
Mangaru & Others vs State Of U.P. & Others on 13 March, 2018
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 25 Case :- WRIT - C No. - 47664 of 2009 Petitioner :- Mangaru & Others Respondent :- State Of U.P. & Others Counsel for Petitioner :- Ram Niwas Singh,Vinay Kr. Singh Chandel Counsel for Respondent :- C.S.C.,Anuj Kumar Hon'ble Siddhartha Varma,J.
By a resolution dated 6.2.1991, the petitioners and the private respondents were allotted plots of lands in village-Bishar, Post Office and Pargana Barhar, Tehsil Ghorawal, District Sonbhadra for agricultural purposes. The required approval was also granted on 7.4.1991 by the Deputy Collector, Ghorawal and, thereafter the petitioners continued in possession. However, after six and half years on 17.6.1997 at the behest of the Forest Department, a case under Section 198(4) of the U.P. Consolidation of Holdings Act, 1953 was registered as case no. 26/1998. Show cause notices were issued to the petitioners and the private respondents. Objections were filed. However the respondent no.3 i.e. the Additional Collector/District Magistrate, Sonbhadra on 30.3.2002 held that the pattas had to be cancelled. The petitioners filed a revision which was also dismissed vide order dated 27.6.2009 of the Additional Commissioner (Administration) Vindhyachal Division, Mirzapur. Hence the instant writ petition.
Sri Ram Niwas Singh, senior counsel for the petitioners assisted by Sri Vinay Kumar Singh Chandel, Advocate has raised the following Submissions:
(I) The application as was made by the Forest Department was only to the extent that a notification with regard to the land in question under Section 4 of the Indian Forests Act had been issued on 18.3.1968 under the Indian Forest Act and, there was yet no publication of any notification under Section 20 of the Indian Forest Act, therefore, the allotment as was made under Section 195 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 could not be nullified as no Reserved Forest had yet been declared.
(II) The village, after allotment, had undergone consolidation and despite the fact that the names of the patta holders were entered in the basic year entries no objection was made by any State authotorities or the Forest Department, meaning thereby that owing to a clear bar of Section 49 of the U.P. Consolidation of Holdings Act, 1953 proceedings for cancellation of pattas could not have been initiated and proceeded with.
(III) In the absence of any objections, the consolidation authorities had adjudicated various cases with regard to the land in question and had found that the petitioners' pattas were in order. Now no objection could be raised with regard to the pattas of the petitioners as any objection after the issuance of Section 52 notification under the U.P. Consolidation of Holdings Act, 1953 would be barred by Section 49 of the U.P. Consolidation of Holdings Act, 1953.
(IV) Learned counsel has submitted that even though, nowhere, at any point of time was the question raised that the land in question was not of the Gaon Sabha and the same had been resumed by the State Government the question could not now be raised in the counter affidavit of the writ petition for the first time in the instant writ petition. Never before was either the case of resumption agitated nor adjudicated upon and in all probabilty the State had again handed over the land to the Gaon Sabha, which in its turn had allotted the land to the petitioners.
(V) He submits that as per the decision in AIR 1978 SC 851 (Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others), the case of the respondents could not be improved by means of affidavits. The order impugned had to be judged on its own merit.
(VI) Learned counsel further submitted that the petitioners had althrough been in possession and it would be extremely harsh on the part of the State now to dispossess them. He has submitted that even in the High Court there was an interim order and the petitioners have continued to be in possession.
(VII) When there was no notification under Section 20 of the Indian Forest Act then the Forest Department could not take possession of the petitioners' land even if the pattas were cancelled and, therefore, it could not be considered to be a "person interested" under Section 198 (4) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.
(VIII) He submits that the State Government had not contested the pattas either at the consolidation stage or at the stage when the pattas were being sought to be cancelled under Section 198 (4) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. They had thus lost their right to contest the writ petition or even the pattas of the peitioners. Definitely thus the question regarding resumption could now not be raised.
Learned Standing Counsel in reply however, submitted that since the land in question has been resumed by the State Government by Gazette notification dated 9.8.1967 and as there was a notification under Section 4 of the Indian Forest Act, the lands in question could not have been allotted to the petitioners and the private respondents. Further, the learned Standing Counsel submitted that it mattered little that a notification under Section 20 of the Indian Forest Act was yet not made and, therefore, he submitted that the pattas were rightly cancelled.
Having heard the learned counsel for the parties, I am of the view that the order passed on 27.6.2009 by the Additional Commissioner (Administration) Vindhyachal Division, Mirzapur and order passed on 30.3.2002 by the Additional Collector/District Magistrate, Sonbhadra respectively cannot be sustained. When the notification under Section 20 of the Indian Forest Act had not taken place, no right had accrued to the Forest Department. They were thus not "parties aggrieved" under Section 198 (4) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950. As per the law laid down in 2005 (98) RD 106 (Pyare Lal vs. Deputy Director of Consolidation, Mainpuri Camp at Etah and Ors.), a person who was not aggrieved could not initiate proceedings for the cancellation of pattas.
The petitioners were, after a proper procedure was adopted, allotted the plots of land over which they even today were in possession. Under the Forest Act, it is evident that unless a notification under Section 20 of the Indian Forest Act is published the land cannot be treated as a Reserved Forest. Since the petitionrs' counsel read out Sections 4 and 20 of the Indian Forest Act the same are being reproduced herein as under :
"4. Notification by state Government.-(l) 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 thatof 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."
"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 [OfficialGazette), 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."
A perusal of the two Sections clearly shows that Section 4 is only an intention of the Government that it intended to declare certain lands as 'Reserved Forest'. This intention was declared in the year 1968 and, thereafter no steps were taken by the State or by the Forest Department and it is apparent from the record that till date the land had yet not been notified under the Forest Act as Reserved Forest under Section 20 of the Indian Forest Act. Since the land is yet not belonging to the forest, it can safely be said that the Forest Department was not a "person aggrieved" under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950.
Consolidation proceedings were undergone. No objection was raised by eithr the State Government or the Forest Department with regard to the pattas of the petitioners. They were therefore, barred from taking any objection by virtue of Section 49 of the U.P. Consolidation of Holdings Act, 1953. This is what has also been laid down in 2013 (120) RD 664 (Nagendra Pal Singh vs. Bhadrapal Singh). Paragraph-14 of this judgment is relevant for the purposes of this case and, therefore, is being reproduced here as under:
"14. All adjudications and declarations of rights of tenure holder after close of consolidation proceedings shall be barred and no Court shall take cognizance of such dispute which has been decided by consolidation Court or which could have been decided. Sri Anil Sharma, learned counsel for appellant, contended that the land was recorded in the name of defendant-appellant during consolidation proceedings and no objection was raised before the consolidation authorities, hence, after close of consolidation proceedings, the suit in question challenging the right of petitioner in respect to the property in dispute is barred inasmuch such a dispute, if raised, could have been decided by consolidation authorities."
Further I find substance in the submission of the learned counsel for the petitoiners that at no point of time during the proceedings in the courts below it was brought to the ntoice of the courts that the land had been resumed under Section 117 (6) of the Uttar Pradesh Zamindari Abolition and Land Reforms Act. Definitely no improvement can be made on the orders impugned by means of affidavits. If at all the State Government wishes to take advantage of the resumption they may take recourse to separate proceedings. However, as things stand, the orders dated 30.3.2002 and 27.6.2009 passed by the Additional Collector/District Magistrate, Sonebhadra and the Additional Commissioner (Administration), Vindhyachal Division, Mirzapur respectively cannot be sustained and, therefore, are quashed.
The writ petition is allowed.
Order Date :- 13.3.2018 Ashish Pd.