Allahabad High Court
Indrapal Singh Son Of Sidhu Singh vs State Of Uttar Pradesh Through The ... on 8 December, 2006
Equivalent citations: AIR 2007 (NOC) 984 (ALL.) = 2007 (2) ALJ 167, 2007 (2) ALL LJ 167, 2007 A I H C 1080, (2007) 102 REVDEC 173, (2007) 66 ALL LR 728, (2007) 1 ALL WC 859
Author: Sunil Ambwani
Bench: Sunil Ambwani
JUDGMENT Sunil Ambwani, J.
1. The plaintiff's second appeal arises out of the judgment of District Judge, Banda dated 23.8.1975 in civil appeal No. 4 of 1975, allowing the appeal and setting aside the judgment and decree of Munsif Banda in Original Suit No. 708 of 1969 by which he had decreed the suit for permanent injunction to restrain defendants to demarcate and take possession of plot Nos. 921 area 2 bigha and 13 biswa and plot No. 749 area 35 bigha. For rest of the plots the suit was dismissed.
2. The plaintiff filed the suit stating that he was landlord of village Titihra, Tehsil Naraini, District Banda of agricultural plots, which were situate within his Zamindari. He continued to occupy the land either as Bhumidhari or as sirdar including khalihan and grazing ground. On some of these plots houses were" situate. In February 1969 the employees of Forest Department of the State under the instruction of Divisional Forest Officer, Banda came to him for demarcation and enclosure of these plots under U.P. Private Forest Act, 1935. He did not receive any notification under Section 17 of the Act nor any such notification came to his knowledge. No enquiry was made under Section 18 nor any proclamation was made under Section 19 of the Act. The defendant did not comply Section 32 and 33 of the Act and did not issue any proclamation under Section 33. The defendants had no right to interfere in his possession and to demarcate the land. He claimed permanent injunction in respect of 41 plots having total area of 413 bigha 1 biswa.
3. In the written statement it was alleged that a notification under Section 3(3) of the Indian Forest Act, 1927 (the Act) was published in U.P. gazette on 18.10.1962 after a notification under Section 4 of the Act was published prohibiting the cutting of trees on 28.7.1954. The management of the land had vested in the State and its forest department. Thereafter notices and proclamation under Section 6 was issued, with wide publicity. The plaintiff also preferred claim before the Forest Settlement Officer, Banda for his plots. The claims were dismissed. The plaintiff did not file any appeal. He is as such estopped from agitating the matter in civil Court. The plaintiff is not in possession and has no right to maintain the suit for injunction. The proceedings for demarcation have been completed long before the suit was filed.
4. The Munsif decided issue No. 3 as preliminary issue. The plaintiff amended the plaint, The Munsif held that the suit was not barred by Section 331 of the U.P.Z.A. & L.R. Act. The civil court and not the revenue court had the jurisdiction to decide the case. The plaintiff was a Bhumidhar of plot No. 921 area 2 bigha 13 biswa and plot No. 749 area 35 bigha. He has no right or claim over the rest of the plots. The suit was decreed only in respect of these two plots. The appellate Court held that the plaintiff had knowledge of the proceedings under the Indian Forest Act. He filed objections before the Forest Settlement Officer, which were dismissed. The department has filed extract of the register to show that the objections were dismissed. Though register B was not proved according to law, the plaintiff admitted in his cross-examination that he had filed objections in respect of two other plots. He, however, claimed that his objections were allowed. The appellate Court found that no objections were filed in respect of plot Nos. 921 and 749. The plaintiff stated that he was misled by Lekhpal, who had informed him that his two plots in respect of which objections were moved before the Forest Settlement Officer were the only plots taken by the Forest Department.
5. The appellate Court held that once the plaintiff came to know of the move of the Forest Department to take some of his land, he should have made proper enquiries and filed objections in respect of all the land in dispute. Since he had actually taken objections, he cannot succeed on the plea that he had no notice of the proceedings for declaring the land as forestland. The rights and title of the plaintiff have extinguished under Section 9 of the Act. He cannot obtain a decree from the civil Court against the State and forest for permanent injunction.
6. Shri R.R. Shivhare, learned Counsel for the appellant submits that the plaintiff-appellant was a recorded tenure holder. The land was not forest or waste land. The plaintiff appellant was not given individual notice nor any notification was issued under Section 4. The petitioner was not informed nor could gather knowledge of the proclamation of the two plots. The notification under Section 6 and Section 20 are bad in law, and that his rights are not affected under Section 9 of the Act. The land is in cultivatory possession of the plaintiff. The plaintiff could pursue his rights in Civil Court and that the appellate Court grossly erred in law in holding that the prescribed procedure was followed.
7. Shri R.R. Shivhare has relied upon Smt. Gurbir Kaur v. State of U.P. 1980 AWC 372 (Para 5) in support of his submission that laws taking away rights to property must be liberally construed in favour of citizens and Jang Bahadur v. State 1971 AWC 599; State of U.P. v. Mahant Avaldvanath 1977 Alld 192; Ratan Singh v. State of U.P. 1979 ALJ 1216 (Paral2) and State of U.P. v. Asstt. Director Consolidation 1999 AWC 1968 (paras 13, 15, 24 25) in submitting that only forest land, waste land or land which is the property of Government, or over which the Government has proprietary rights can be notified as forest land under the Act. In other lands the rights of claimants do not get extinguished under Section 9 of the Act.
8. The two plots in question were included in the notification along with order plots of the appellant. Once he acquired knowledge of the proceedings and had filed his objections, which were dismissed, it was incumbent on him to have gathered full knowledge of the notification and the plots and cannot be heard to say that the Lekhpal did not inform him of these two plots for which he did not file any objection. Section 3 and 27-A was added by U.P. Act 23 of 1965 in its application to the State of U.P. after Section 27 of the Act w.e.f. 23.11.1965 and provide as follows:
3. Power to reserve forest:- The (State) Government may constitute any forest-land or waste-land which is the property of 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 in the manner hereinafter provided, 27-A- Finality of orders, etc.:- No act done, order made or certificate issued in exercise of any power conferred by or under this chapter shall, except as hereinbefore provided, be called in question in any Court.
9. The notification under Section 4, 6 and 20; the extinction of rights under Section 9 on the issuance of notification fall in Chapter II of the Indian Forest Act, 1927, which ends with Section 27A of the Act. There is a presumption of conduct of all official act in accordance with the statute. The plaintiff appellant had knowledge of the proceedings. He, however, chose to file objections only in respect of some of the plots. In the normal course he was expected to make further enquiries. There is no evidence to prove that he was given any such information that the two plots in question were excluded from the notification. The Act does not provide notice to individuals. It provides for publication of notice, right to file objections, a right of appeal and then a revision to the State Government under Section 18(4) of the Act and gives finality to the orders, subject only to the provisions of Section 22 in the State of U.P., which provides for revising the arrangements under Section 15 or 18 of the Act, within five years of the publication of the notification under Section 20 of the Act. The acts done under the Act in the State of U.P., cannot be called in question in any Court except by Article 226 of the Constitution of India. The plaintiff-appellant did not challenge the notification either by appeal or by a writ petition.
10. The judgment in Smt. Girbir Kaur (Supra), Jang Bahadur (Supra) considered the effect of notifications dated 06.8.1954 and 01.5.1954 under Section 4 and the filing of objection rejected by Forest Settlement Officer on 18.12.1959, the appeal and revision before State Government, before the enforcement of U.P. Amendment to the Act by U.P. Act No. 23 of 1965 w.e.f. 23.11.1965. The effect of U.P. Amendment was not considered by the Court. The judgment in Ratan Singh (Supra) were given in writ petition after recording findings that the land was not forest or waste land or property of Slate Government. The case in Ratan Singh and State of U.P. v. Asstt. Director Consolidation (Supra) arose out of consolidation proceedings.
11. In Dhulabhai v. State of M.P. the principles relating to exclusion of jurisdiction of civil court were explained, and have been so reiterated in Swamy Atmananda v. Shri Ramakrishna Tapovanam (2005) 10 SCC 52 (para 52) as follows:
(a) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(b) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the tntendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.
(c) Challenge to the provisions of the particular Act as ultra vires cannot be brought before tribunals constituted under the Act. Even the High Court cannot go into that question on a revision or reference from the decision of the tribunals.
(d) When a provisions is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
(e) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
(f) Questions of the correctness of the assessment apart from its constitutionality, are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act, In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
(g) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.
12. In the case at hand the Act provides adequate remedies to do what the civil Court would normally do and provides finality to orders. The plaintiff-appellant did avail the remedy but did not include the plots in dispute, from his objections. He could not then be permitted to call in aid the jurisdiction of Civil Court for the remaining plots and to decide whether the plots were not forest or waste land, and that the prescribed procedure of notifying forest land was not followed under the Act. The appellate Court did not commit any legal error in allowing the civil appeal.
13. The second appeal is, consequently, dismissed.