Allahabad High Court
Bhagirath & 4 Ors. vs D.M., Lakhimpur Kheri & 2 Ors. on 27 November, 2017
Bench: Shabihul Hasnain, Sheo Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved Court No. - 3 Case :- MISC. BENCH No. - 2761 of 2005 Petitioner :- Bhagirath & 4 Ors. Respondent :- D.M., Lakhimpur Kheri & 2 Ors. Counsel for Petitioner :- Umesh Chandra Pandey,Chandra Bhushan Pandey,S.K. Verma,Sanjay Srivastava,Shiv Sharan Singh Counsel for Respondent :- C.S.C. Hon'ble Shabihul Hasnain,J.
Hon'ble Sheo Kumar Singh-I,J.
(Delivered by Hon'ble Sheo Kumar Singh-I, J.)
1. Heard Mr. Umesh Chandra Pandey, learned counsel for the petitioners as well as learned Standing Counsel.
2. By means of this writ petition filed under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:
"i) issue a writ, order or direction in the nature of Mandamus directing the opposite parties to consider and allot the ceiling land to the petitioner and other similar persons, permitted to live under rehabilitation scheme, over the land of Khata No.1832 situate in village Majhgai, Tehsil Nighasan, District Kheri.
ii) issue a writ, order or direction in the nature of Mandamus directing the opposite parties not to interfere in the peaceful living of the petitioner and other similar persons or to take any coercive action against them.
iii) issue any other writ, order or direction which this Hon'ble court may deem just and proper in the circumstances of the case."
3. In opening paragraph of the writ petition, it has been submitted that the petitioners have filed this writ petition in the interest of public at large, who are poor, landless and are living and doing agriculture over the land vested in State and on the land of Zamindar-Raja Yuvraj Dutt Singh, who had permitted the petitioners and other persons to live under rehabilitation scheme after the houses and everything were damaged in the flood.
4. The contents of the writ petition reveal that Khata No.1832 consisting about 1063 acres has plots of village Majhgai, Pargana and Tehsil Nighasan, District Kheri is recorded as ceiling land in the official record and later on it was declared as ceiling land vide order dated 10.12.1999 by the Prescribed Authority. The land in question situated near river Sharda and Forest area. An objection was filed under Section 10(2) of Ceiling Act before the Prescribed Authority, which was rejected vide order dated 29.05.1997. Later on the matter was reconsidered and remanded back for consideration. Objections under Section 11(2) of the Ceiling Act and Section 4 of the Indian Forest Act were filed before the competent authority, which were considered by the Forest Settlement Officer. The petitioners have submitted in para-6 of the writ petition that nearly thousand of families residing near Sharda river were badly affected by flood and their houses were destroyed, to rehabilitate them, they were permitted by the District Authorities to live there by constructing temporary sheds and as there was no source of living the then Raja Yuvraj Dutt Singh permitted them to use and enjoy his agricultural land and since 1998 the petitioners along with other persons, whose names are mentioned in the list, are living and doing agricultural work. Though the Forest Department did not want their living there and initiated a criminal proceeding under Indian Penal Code and also under Forest Act. The criminal cases were registered against the petitioners. Some of the persons were taken into custody. Later on they were released on bail. It is contended that the eligibility of the petitioners may be considered for allotment of land under Section 122B(4) of the Uttar Pradesh Zamindari Abolition And Land Reforms Act, 19501 and the petitioners had made request before the competent authority but the same was not duly considered till filing of the present writ petition.
5. Learned counsel for the petitioners has contended that right to livelihood is included to the right to life not only physical existence of life but also the quality of life and includes all that give meaning to a man's life including his tradition, culture and heritage and protection of that heritage in its full measure and it also include right to a reasonable accommodation to live, and all these rights have been guaranteed under Article 21 of the Constitution of India.
6. By filing counter affidavit on behalf of respondents, it has been submitted that the area in dispute is in the nature of uncultivated waste land or forest land prior to the date of vesting and vested in the State of U.P. free from encumbrances as a consequence of vesting under the provisions of the Act, 1950. Vide Notification No.617/XIV dated 11.10.1952 published in the U.P. Gazette dated 18.10.1952 an area of 1264 acres of land situated in village Majhgai was retained by the State of U.P. with it, which is in the nature of the dense forest prior to the date of vesting and even remained to be so thereafter. Vide Notification No.2830/14-702-59 dated 02.05.1959 under Section 4 of the Indian Forest Act an area of 1083.10 acres was proposed for constituting as a reserved forest. An objection was filed by the then Zamindar before the Forest Settlement Officer, which was rejected vide order dated 17.08.1961 on the ground that Zamindar has no tenancy right on the land in dispute. The order passed by the Forest Settlement Officer was never challenged before the competent court and has attained finality. After completing all the formalities the land was notified as reserved forest vide Notification dated 06.12.1965, which was published in the Official Gazette dated 05.03.1966. The Notification was given effect to into the revenue records in accordance with Section 20 of the Indian Forest Act and the name of Forest Department has been mutated in the revenue records in the Khatauni. The Notification issued under the Forest Act and the Notification issued by the State Government was within the knowledge of all concerned including the Revenue Staff of the Tehsil Nighasan as well as to all other Revenue/Ceiling Authorities. It has further been submitted that the proceeding initiated by the Prescribed Authority under Ceiling Act was initiated in ignorance of the fact that the land was previously declared as forest and was recorded in the revenue record as forest.
7. According to the petitioners, crux of the matter is that the State Government should be directed to allot the land in their favour and also to permit them to cultivate the agricultural land available there. They have right over the land on behalf of ex Zamindar because the then Zamindar given the land in dispute to them for residential and agricultural purposes.
8. For better understanding, it would be appropriate to reproduce relevant provisions of U.P. Zamindari Abolition & Land Reforms Act regarding vesting of estates in State and consequences of the vesting which are as follows:-
Section 4- Vesting of estates in the State. - (1) As soon as may be after the commencement of this Act, the State Government may, by notification, declare that, as from a [date] to be specified, all estates situate in Uttar Pradesh shall vest in the State and as from the beginning of the date so specified (hereinafter called the date of vesting), all such estates shall stand transferred to and vest, except as hereinafter provided, in the State free from all encumbrances.
(2) It shall be lawful for the State Government, if it so considers necessary, to issue, from time to time, the notification referred to in sub-section (1) in respect only of such area or areas as may be specified and all the provisions of subsection (1) shall be applicable to and in the case of every such notification.
Section 6- Consequences of the vesting of an estate in the State. - When the notification under Section 4 has been published in the Gazette, then, notwithstanding anything contained in any contract or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of the date of vesting, ensure in the area to which the notification relates, namely :
(a) all rights, title and interest of all the intermediaries-
(i) in every estate in such area including land (cultivable or barren), grove-land, forests whether within or outside village boundaries trees (other than trees in village abadi, holding or grove), fisheries, [* * *], tanks, ponds, water-channels, ferries, pathways, abadi sites, hats, bazars and melas (other than hats, bazars and melas held upon land to which Clauses (a) to (c) of sub-section (1) of Section 18 apply; and
(ii) in all sub-soil in such estates including rights, if any, in mines and minerals, whether being worked or not;
shall cease and be vested in the State of Uttar Pradesh free from all encumbrances;
(b) all grants and confirmations of title of or to land in any estate so acquired, or of or to any right or privilege in respect of such land or its land revenue shall, whether liable to resumption or not, determine;
(c) (i) all rents, cesses, local rates and sayar in respect of any estate or holding therein for any period after the date of vesting and which, but for the acquisition would be payable to an intermediary, shall vest in and be payable to the State Government and not to the intermediary and any payment made in contravention of this clause shall not be valid discharge of the person liable to pay the same;
(ii) where under an agreement or contract made before the date of vesting any rent, cess, local rate or sayar for any period after the said date has been paid to or compounded or released by an intermediary the same shall, notwithstanding the agreement or the contract, be re-coverable by the State Government from the intermediary and may without prejudice to any other mode of recovery, be realized by deducting the amount from the compensation money payable to such intermediary under Chapter III;
(d) all arrears of revenue, cesses or other dues in respect of any estate so acquired and due from the intermediary [or an arrear on account of tax on agricultural income assessed under the U.P. Agricultural Income Tax Act, 1948] (U.P. Act III of 1949) for any period prior to the date of vesting shall continue to be recoverable from such intermediary and may, without prejudice to any other mode of recovery, be realized by deducting the amount from the compensation money payable to such intermediary under Chapter III;
(e) all amounts ordered to be paid by an intermediary to the State Government under Sections 27 and 28 of the U.P. Encumbered Estates Act, 1934 (U.P. Act XXV of 1934) and all amounts due from him under the Land Improvement Loans Act, 1883 (U.P. Act XIX of 1883), or the Agricultural Loans, Act, 1884 (U.P. Act XIX of 1884), shall notwithstanding any thing contained in the said enactments, become due forthwith and may, without prejudice to any other mode of recovery provided therefor, be realized by deducting the amount from the compensation money payable to such intermediary under Chapter III;
(f) the interest of the intermediary so acquired in any estate shall not be liable to attachment or sale in execution of any decree or other process of any Court, Civil or Revenue and any attachment existing at the date of vesting or any order for attachment passed before such date shall, subject to the provisions of Section 73 of the Transfer of Property Act, 1882 (IV of 1882), cease to be in force;
(g)(i) every mortgage with possession existing on any estate or part of an estate on the date immediately preceding the date of vesting shall, to the extent of the amount secured on such estate or part, be deemed, without prejudice to the rights of the State Government under Section 4, to have been substituted by a simple mortgage;
(ii) notwithstanding anything contained in the mortgage deed or any other agreement, the amount declared due on a simple mortgage substituted under sub-clause (i) shall carry such rate of interest and from such date as may be prescribed;
(h) no claim or liability enforceable or incurred before the date of vesting by or against suc As to whether h intermediary for any money, which is charged on or is secured by mortgage of such estate or part thereof shall, except as provided in Section 73 of the Transfer of Property Act, 1882 (IV of 1882), be enforceable against his interest in the estate;
(i) all suits and proceedings of the nature to be prescribed pending in any Court at the date of vesting and all proceedings upon any decree or order passed in any such suit or proceeding previous to the date of vesting shall be stayed;
(j) all mahals and their sub-divisions existing on the date immediately preceding the date of vesting and all engagements for the payment of land revenue or rent by a proprietor, under-proprietor, sub-proprietor, co-sharer or lambardar as such shall determine and cease to be in force.
Section 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 As to whether 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.
Section 13- Estate in possession of a thekedar. - (1) Subject to the provisions of Section 12 and sub-section (2) of this section a thekedar of an estate or share therein shall, with effect from the date of vesting, cease to have any right to hold or possess as such any land in such estate.
9. Learned counsel for the petitioners and learned counsel for the respondents have also raised certain legal issues for determination which are as follows:-
(i) As to whether the revenue courts can hear any objection regarding the claim of land which has been declared as reserved forest.
(ii) As to whether Section 27-A of Indian Forest Act, 1927, creates a bar of consideration of claim which has been declared as forest reserve.
(iii) Whether any land forming part of holding of any tenure holder can be declared as reserve forest under the provisions of Indian Forest Act.
10. Before considering the issues which arise in the writ petition, it is necessary to look into the scheme and the nature of proceeding which are existing under the Indian Forest Act, 1927. The Forest Act. 1927, was enacted to consolidate the law relating to forest, the transit of forest-produce and other connected matters. Chapter 11 of the Act relates to reserved forest. Section 3 provides the power to reserve forests. This Section provides that 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, a reserved forest. Section 3 reads as under:
"Section 3.-Power to reserve forests.--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."
11. Section 3 as in its application to the State of Uttar Pradesh, has been substituted by U.P. Act No. XXIII of 1965 with effect from 23.11.1965, to following effect:
"3. Power to reserve forests.--The State Government may constitute any forest land or waste land or any other land (not being land for the time being comprised in any holding or grove or in any village abadi) which is the property of the 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 reserve forest in the manner hereinafter provided.' Explanation.--The expression 'holding' shall have the meaning assigned to, it in the U.P. Tenancy Act, 1939, the expression 'village abadi' shall have meaning assigned to it in the U.P. Village Abadi Act. 1947."
12. Section 4 provides that whenever it has been decided to constitute any land a reserved forest, the State Government shall issue a notification in the Official Gazette. Section 4 is quoted as below :
"Section 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."
Section 5-Bar of accrual of forest-rights.-After the issue of a notification under section 4, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf.
State Amendments Uttar Pradesh,- For section 5, substitute the following section, namely:-
"5. Bar of accrual of forest rights.- After the issue of the notification under Section 4 no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or a contract in writing made or entered into by or on behalf of the government or some person in whom such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land, nor any tree therein felled, girdled, lopped, tapped, or burnt, or its bark or leaves stripped off, or the same otherwise damaged, nor any forest produce removed therefrom, except in accordance with such rules as may be made by the State Government in this behalf.
Section 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.
"Section 7 : Inquiry by forest settlement officer.--The forest settlement officer shall take down in writing all settlements made under Section 6, and shall at some convenient place inquire into all claims duly preferred under that Section, and the existence of any rights mentioned in Section 4 or Section 5 and not claimed under Section 6 so far as the same may be ascertainable from the records of Government and the evidence of any person likely to be acquainted with the same.
13. Section 8 deals with the power of the Forest Settlement Officer. Section 8 is material, since it provides that the Forest Settlement Officer will have all the powers of civil court in trial of the suit. Section 9 is with regard to extinction of rights. Sections 8 and 9 are extracted below :
"Section 8--Power of forest settlement officer.--For the purpose of such inquiry, the forest settlement officer may exercise the following powers, that is to say :
(a) power to enter, by himself or any officer authorised by him for the purpose, upon any land, and to survey, demarcate and make a map of the same : and
(b) the powers of a civil court in the trial of the suit."
"Section 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 preferring such claim within the period fixed under Section 6."
14. Section 11 of the Act provides that the forest settlement officer shall pass an order admitting or rejecting the claim to a right in or over any land. Sub-section (2) of Section 11 provides that if claim is admitted in whole or in part then he will either exclude such land from limit of the proposed forest or come to an agreement with the owner thereof for the surrender of his rights, or proceed to acquire such land in the manner provided by the Land Acquisition Act, 1894. Section 17 provides for right of appeal to a claimant against the order of Forest Settlement Officer to such officer of revenue department, of rank not lower than that of Collector as the State Government by notification in the Official Gazette, appoint, to hear appeals from such orders. This Section also contemplates creation of a Court, namely, Forest Court. Section 20 provides for issue of notification declaring reserved forest. Sections 17, 18 and 20 are extracted below :
Section 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 than that 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.
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 the District Judge."
Section 18-Appeal under section 17.(1) Every 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 authority competent to hear the same.
(2) If the appeal be to an officer appointed under section 17, it shall be heard in the manner prescribed for the time being for the hearing of appeals in matters relating to land-revenue.
(3) If the appeal be to the Forest Court, the Court shall fix a day and a convenient place in the neighbourhood of the proposed forest for hearing the appeal, and shall give notice thereof to the parties, and shall hear such appeal accordingly.
(4) The order passed on the appeal by such officer or Court, or by the majority of the members of such Court, as the case may be, shall, subject only to revision by the State Government, be final.
State Amendments Uttar Pradesh- For section 18, substitute the following section, namely:-
"18 Appeal under Section 17- (1) Every 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 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 appeal shall, subject to the provision of section 22, be final."
Section 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.
State Amendments Uttar Pradesh- After section 20, insert the following section, namely:-
"20 A. Certain forest land or waste land when deemed to be reserved forest.- (1) Notwithstanding anything contained in this Act or in any other law for the time being in force, including the Merged States (Laws) Act, 1949 or the U.P. Merged States (Application of Laws) Act, 1950, or any order issued thereunder, any forest land or waste land in a merged State which immediately before the date of merger (hereinafter in this section referred to as the said date)-
(a) was deemed to be reserved forest under any enactment in force in that State, or
(b) was recognized or declared by the Ruler of such State as a reserved forest under any law (including any enactment, rule, regulation, order, notification, custom or usage having the force of law) for the time being in force, or
(c) was dealt with a reserved forest in any administrative report or in accordance with any working plan or register maintained and acted upon under the authority of the Ruler.
Shall be deemed to be and since the said date to have continued to be a reserved forest subject to the same rights or concession, if any, in favour of any person as were in force immediately before the said date.
Explanation I.- A certificate of the State Government or of any officer authorized in his behalf to the effect that a report, working plan or register was maintained and acted upon under the authority of the Ruler shall be conclusive evidence of the fact that it was so maintained and acted upon.
Explanation II.- Any question as to the existence or extent of any right or concession referred to in this sub-section shall be determined by the State Government, whose decision, given after such enquiry, if any, as it thinks fit, shall be final.
Explanation III.- ''Working plan' includes any, plan scheme, project, map, drawings and lay-outs prepared for the purpose of carrying out the operations in course of the working and management of forests.
(2) No right shall be deemed to have been acquired on or after the said date in or over any land mentioned in sub-section (1) except by succession or under a grant or contract in writing made or entered into by or on behalf of the State Government or some person in whom such right was vested immediately before the said date and no fresh clearings since made for cultivation or for any other purpose (except clearings made in accordance with any concessions granted by the Ruler and in force immediately before the said date or in accordance with the rules made by the State Government in this behalf since the said date) shall be recognized as or deemed to be lawful, anything contained in this Act or any other law for the time being in force notwithstanding.
(3) The State Government may within five years from the commencement of the Indian Forest (Uttar Pradesh Amendment) Act, 1965, revise any arrangement of the nature specified in section 22, and pass any incidental or consequent, order, including any direction to the effect that any of the proceedings specified in the foregoing provisions of this Chapter be taken.
(4) In relation to any land mentioned in sub-section (1), the references in sections 24 and 26-
(a) to section 23 shall be construed as references to sub-section (2); and
(b) to rights admitted, recorded or continued under section 14 or section 15 shall be construed as references to rights of pasture or to forest produce admitted, recorded or continued in or under the corresponding enactment, law or document referred to in sub-section (1).
(5) Without prejudice to any action that may be or may have been taken for ejectment, vacation of encroachment or recovery of damages in respect of any unauthorized occupation of or trespass over any land mentioned in sub-section (1), or for seizure, confiscation, disposal or release (on payment of value or otherwise) of any forest produce in respect of which any forest offence has been committed in relation to such land or of any tools, boats, carts, or cattle used in committing such offence, nothing in this section shall be deemed to authorize the conviction of any person for any act done before the commencement of the Indian Forest (Uttar Pradesh Amendment) Act, 1965, which was not an offence before such commencement.
Section 23 and 24 of the Act, which are also relevant in the present context are reproduced herein under:-
"Section 23- No right acquired over reserved forest, except as here provided.-No right of any description shall be acquired in or over a reserved forest except by succession or under a grant or contract in writing made by or on behalf of the Government or some person in whom such right was vested when the notification under section 20 was issued.
Section 24- Rights not to be alienated without sanction.-(1) Notwithstanding anything contained in section 23, no right continued under clause (c) of sub-section (2) of section 15 shall be alienated by way of grant, sale, lease mortgage or otherwise, without the sanction of the State Government Provided that, when any such right is appendant to any land or house, it may be sold or otherwise alienated with such land or house.
(2) No timber or other forest-produce obtained in exercise of any such right shall be sold or bartered except to such extent as may have been admitted in the order recorded under section 14.
Section-26 Acts prohibited in such forests. (1) Any person who -
(a) makes any fresh clearing prohibited by section 5, or
(b) sets fire to a reserved forest, or, in contravention of any rules made by the State Government in this behalf, kindles any fire, or leaves any fire burning, in such manner as to endanger such a forest;
or who, in a reserved forest
(c) kindles, keeps or carries any fire except at such seasons as the Forest-officer may notify in this behalf,
(d) trespasses or pastures cattle, or permits cattle to trespass;
(e) causes any damage by negligence in felling any tree or cutting or dragging any timber;
(f) fells, girdles, lops, or bums any tree or strips off the bark or leaves from, or otherwise damages, the same;
(g) quarries stone, bums lime or charcoal, or collects, subjects to any manufacturing process, or removes, any forest-produce;
(h) clears or breaks up any land for cultivation or any other purpose;
(i) in contravention of any rules made in this behalf by the State Government hunts, shoots, fishes, poisons water or sets traps or snares; or
(j) in any area in which the Elephants Preservation Act, 1879 (6 of 1879), is not in force, kills or catches elephants in contravention of any rules so made, shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, in addition to such compensation for damage done to the forest as the convicting Court may direct to be paid.
(2) Nothing in this section shall be deemed to prohibit -
(a) any act done by permission in writing of the Forest-officer, or under any rule made by the state Government; or
(b) the exercise of any right continued under clause (c) of sub-section (2) of section 15, or created by grant or contract in writing made by or on behalf of the Government under section 23.
(3) Whenever fire is caused wilfully or by gross negligence in a reserved forest, the State Government may (notwithstanding that any penalty has been inflicted under this section) direct that in such forest or any portion there of the exercise of all rights of pasture or to forest produce shall be suspended for such period as it thinks fit.
15. Section 27A has been added by the U.P. Act No. 23 of 1965 which reads as under :
'Section 27A--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 herein before provided, be called in question in any Court."
16. From the scheme of the Forest Act and various provisions as referred above, it is evident that in the proceeding beginning with notification under Section-4 all claims regarding land included in the notification are adjudicated by an authorised officer. Section 8 gives all powers of the civil courts to the Forest Settlement Officer available in trial of the suits. There is a provision of appeal under Section 17 to higher forum. The notification under Section 4 is published in Official Gazette appointing Forest Settlement Officer to inquire and determine any right in or over any land. Forest Settlement Officer also issues a proclamation in every town and village in the neighbourhood to make the proceedings known to all concerned. The adjudication of all claims to the land is by a special court with right of appeal. The enquiry regarding claims is for the purpose of finding out as to whether the land in question can be declared as reserved forest or it cannot be declared reserved forest due to the rights or claims of claimants and the provision further contemplates that even if right or claim of claimants has been established there is procedure for coming to agreement with the owner for surrender of his right or to acquire such land in the manner provided by the Land Acquisition Act. The provision of the Act contemplates extinction of all rights regarding land included in the reserved forest.
17. Section 27A has been added giving finality to the orders passed in proceedings under the Indian Forest Act and it creates express bar by saying that the order made or certificate issued in exercise of powers conferred under Chapter II shall not be called to question in any Court. While considering the question of exclusion of jurisdiction of the civil court, Constitution Bench of the Apex Court in Dhulabhai etc. v. State of Uttar Pradesh and Anr., MANU/SC/0157/1968: AIR 1969 SC 78 has laid down principle for determination regarding exclusion of jurisdiction. It was laid down in paragraph 32 (1) at page 89 as under:
"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."
18. The Apex Court had an occasion to consider the similar controversy in State of U.P. v. Deputy Director of Consolidation and Ors. 1996 All LJ 1393 (SC). In the aforesaid case before the Apex Court also, the land in dispute was notified as reserved forest under Section 20 of the Forest Act. Before the consolidation courts, the claimants claimed sirdari right and asserted that the land was Illegally subjected to be proceeding under the Forest Act and the notification declaring the land as reserved forest was illegal. The consolidation courts accepted objection of the claimants and allowed their objections. The writ petition was dismissed by the High Court against which an appeal was filed before the Apex Court. After examining the nature of proceedings under the Forest Act, the Apex Court laid down in paragraph 10 :
"10. It is thus obvious that the forest settlement officer has the powers of a civil court and his order is subject to appeal and finally revision before the State Government. The Act is complete Code in itself and contains elaborate procedure for declaring and notifying a reserve forest. Once a notification under Section 20 of the Act declaring a land as reserved forest is published, then all the rights in the said land claimed by any person come to an end and are no longer available. The notification is binding on the consolidation authorities in the same way as a decree of the civil court. The respondents could very well file objections and claims including objection regarding the nature of the land before the forest settlement officer. They did not file any objection or claim before the authorities in the proceedings under the Act. After the notification under Section 20 of the Act, the respondents could not have raised any objection qua the said notification before the consolidation authorities. The consolidation authorities were bound by the notification which had achieved finality."
19. The Apex Court in the aforesaid case has held that the respondents could not have raised any objection qua the notification under Section 20 before the consolidation authorities.
20. In Maharaja Sir Pateshwari Prasad Singh of Balrampur. Dharam Karva Nidhi v. State of U.P. through Executive Engineer, Irrigation Division. Balrampur and Ors. 1979 RD 142 the learned single Judge took the view that if the rights are adjudicated by the forest settlement officer, those findings by a competent tribunal are binding in the consolidation/revenue proceedings. It was held at page 145 :
"In view of the fact that rights of the petitioner were adjudicated as against the State by the forest settlement officer, whose findings were affirmed in appeal, the said findings being findings by a competent tribunal, the same had a binding effect. The said findings will also be binding even in consolidation proceedings. If the rights of the parties have been decided under the Forest Act then this finding will be binding between the parties before the consolidation authorities as they were also to decide the very same thing which was already decided. Section 11, C.P.C., as such, will not apply, but general principles of res-judicata will apply in respect of the findings recorded by the forest settlement officer which. In any view, is a tribunal of competent jurisdiction and the consolidation authorities are bound by it."
21. The Apex Court in State of U.P. v. Deputy Director of Consolidation (supra) laid down that forest settlement officer having the power of the civil courts and his orders being subject to appeal and revision are final and, once notification under Section 20 of the Forest Act has been issued declaring the land as reserved forest it is not open to raise objection before the consolidation authorities qua the said notification. Apex Court having laid down in 1996 ALJ 1393 that the consolidation authorities were bound by the notification issued under Section 20 of Forest Act which have achieved finality. Adjudication by Forest Settlement Officer regarding the rights of a claimant are final and cannot be reopened by consolidation authorities otherwise there may be two conflicting judgments on the same issue which has never been the intention of the law. The decision by the forest settlement officer cannot be said to be judgment coram non judice nor it can be said that the Judgments of the forest settlement officer are nullity nor it can be said that the said authority had no jurisdiction to determine about the nature of land included in the notification.
22. In view of the above discussion with regard to question No. 1, it is held that the revenue/consolidation courts or authority other than the authority as mentioned in the Forest Act cannot entertain a claim with regard to land which is covered by notification under the Forest Act, 1927, and with regard to question No. 2 it is held that the Section 27A of the Forest Act creates express bar for adjudication of claim regarding reserved forest in any subsequent proceedings.
23. As regard the third question, the assertion is that the land included in holding of a tenure-holder cannot be declared as reserved forest as such notifications under the Forest Act are without jurisdiction. As noted above, Section-3 gives power to the State Government to constitute any forest land or waste land, which is the property of the Government or over which the Government has proprietary right as the reserved forest. Section 4 contemplates issue of notification with regard to land which is to be declared as reserved forest. Emphasis has been laid with regard to amended provision of Section 3 as substituted by the U.P. Act, 23 of 1965, on the basis of the amended definition, it has been submitted that the land which comprised of any holding or grove or in any village abadi cannot be declared as reserved forest. The Division Bench of this Court in Om Singh and Ors. v. State of U.P. and Ors. 1980 ALJ 78 summary of cases (77), had considered the provisions of Forest Act, 1927, including amended Section 3 of Forest Act. The Division Bench in the aforesaid case has held that even according to the amended definition, the third category of land, namely, "or any other land not being land for the time being comprised in any holding or any village abadi" does not control the first two categories, namely, forest land or waste land Section-3 covers forest land and waste land irrespective of whether the same comprise in a holding or not. The forest land or waste land, if it comprised in a holding, can always be declared as reserved forest exercising the powers under Section 3. The provision of Section 3 of the Forest Act cannot be read to the effect that a forest land or waste land included in any holding cannot be declared reserved forest. The said interpretation will run contrary to the object of Forest Act. A tenure-holder may have a forest land or waste land in his holding but if the said holding is to be excluded from declaration of reserved forest, the same will become beyond the power of the State to declare it reserved forest. The provision of Section 11 of Forest Act which contemplates that the land included under Section 4, even if it belongs to a claimant, can be acquired under Land Acquisition Act, clearly contemplates that the forest land or waste land included in the holding of tenure-holder can also be included in reserved forest.
24. The word "forest land" has not been defined under the Forest Act. The definition of forest land was added by Section 38 (b) by U.P. Act No. 23 of 1965. Section 38A (b) defines forest and Sub-section (c) defines forest land which are quoted below :
"Section 38A (b) "forest" means a tract of land covered with trees, shrubs, bushes or woody vegetation whether of natural growth or planted by human agency, and existing or being maintained with or without human effort, or such tract of land on which such growth is likely to have an effect on the supply of timber, fuel, forest produce, or grazing facilities, or on climate, stream-flow, protection of land from erosion, or other such matters and shall include :
(i) land covered with stumps of trees of a forest;
(ii) land which is part of a forest or was lying within a forest on the first day of July, 1952 ;
(iii) such pasture land, waterlogged or cultivable or non-cultivable land, lying within, or adjacent to, a forest as may be declared to be a forest by the State Government;
(c) "forest land" means a land covered by a forest or intended to be utilised as a forest."
25. The definition of word "forest" is very wide which also includes a tract of land - covered with trees, shrubs, bushes or woody vegetation whether of natural growth or planted by human agency. Section 38A (b) (iii) further clarifies that cultivable or non-cultivable land, lying within, or adjacent to, a forest may be declared to be a forest by the State Government. The word "claimant" has also been defined in Section 38A (a) which is extracted below :
"(a) "Claimant" as respects any land means a person claiming to be entitled to the land or any interest therein acquired, owned, settled or possessed or purported to have been acquired, owned, settled or possessed whether under, through or by any lease or licence executed prior to the commencement of the U.P. Zamindari Abolition and Land Reforms Act, 1950, or under and in accordance with any provision of any enactment. Including the said Act."
26. The word "forest" came for consideration before the Apex Court in T.N. Godauarman Thirumulkpad v. Union of India and Ors., MANU/SC/0278/1997: (1997) 2 SCC 267. The Apex Court said that the word 'forest' must be understood according to its dictionary meaning and will not only include forest as understood in the dictionary sense but also any area recorded as the forest in the Government record irrespective of the ownership. In paragraph 4. It was laid down by the Apex Court :
"4. ..... The word "forest" must be understood according to its dictionary meaning. This description covers all statutorily recognised forests, whether designated as reserved, protected or otherwise for the purpose of Section 20(1) of the Forest Conservation Act. The term "forest land" occurring in Section 2, will not only include "forest" as understood in the dictionary sense, but also any area recorded as forest in the Government record irrespective of the ownership."
27. Thus, if any area of land is in nature of forest and is recorded in the tenure of any tenure-holder or in the name of intermediary/proprietor thekedar (as before abolition of zamindari), the land can be declared as reserved forest irrespective of the ownership of land. Under Indian Forest Act, 1927, power is given to declare the forest land/waste land as reserved forest irrespective of its ownership. Thus, even if forest land or waste land is included in a tenure-holder's tenure, there is no prohibition in any law from declaring the said land as forest land. The third category apart from forest land and waste land which has been added by the U.P. Act 23 of 1965, i.e., any other land (not being land for the time being comprised in any holding or grove or in any village abadi] refers to any other land other than forest land or waste land. Thus, if the land is neither forest nor waste land, the same cannot be declared as reserved forest if it is comprised in any holding or grove or in village abadi. Thus, in fact the U.P. Act 23 of 1965 added one more category of land which can be declared apart from forest or waste land. The scope of Section 3 as applicable in U.P. after U.P. Act 23 of 1965 is wider than the original Section 3 of the Forest Act. This view has already been expressed by the Division Bench in Om Singh and Ors. v. State of U.P. and Ors. 1980 Ald. 78 summary of cases (73).
28. From the above discussion, it is clear that forest land or waste land included in holding of a tenure-holder can also be declared as reserved forest and there is no prohibition even in amended Section 3 vide U.P. Act 23 of 1965. The prohibition which has been created by amended Section-3 is with regard to only any other land not being land for time being comprised in any holding or grove or in any village abadi. The words' not being land for the time being comprised in any holding or grove or any village abadi do not control the word forest land or waste land used in Section 3. A Constitution Bench of the Apex Court considered the provisions of Indian Forest Act, 1927, in Mahendra Lal Jain v. State of Uttar Pradesh and Ors., MANU/SC/0083/1962: AIR 1963 SC 1019. The Apex Court laid down in paragraph 29 as under :-
"29. It is next urged that even if Sections 38A to 38C are ancillary to Chapter II, they would not apply to -the petitioner's land, as Chapter II deals inter alia with waste land or forest land, which is the property of the Government, which is dealt with under Chapter V. That is so. But unless the petitioner can show that the land in dispute in this case is his property and not the property of the State. Chapter II will apply to it. Therefore, the land in dispute vested in the State under Section 6 of the Abolition Act and became the property of the State. It is however, contended on behalf of the petitioner that if he is held to be a Sirdar in proper proceeding, the land would be his property and therefore, Chapter V-A, as originally enacted, if it is ancillary to Chapter II would not apply to the land in dispute. We are of opinion that there is no force in this contention. We have already pointed out that under Section 6 of the Abolition Act all property of intermediaries including the land in dispute vested in the State Government and became its property. It is true that under Section 18, certain lands were deemed to be settled as holder of lands, but it is clear that after land vests in the State Government under Section 6 of the Abolition Act, there is no provision therein for divesting of what has vested in the State Government. It is, however, urged on behalf of the petitioner that he claims to be the proprietor of this land as a bhumidhar, or Sirdar because of certain provisions in the Act. There was no such proprietary right as bhumidhari right before the Abolition Act. The Abolition Act did away with all proprietary rights in the area to which it applied and created three classes of tenure by Section 129; bhumidhar, sirdar and asami, which were unknown before. Thus, bhumidhar, sirdar and asami are all tenure-holders under the Abolition Act and they hold their tenure under the State in which the proprietary right vested under Section 6.
29. Learned counsel for the respondents has submitted that after Zamindari abolition, the land was vested in favour of the State free from all encumbrances, the ex Zamindar has no right, title or interest to provide the land favour of the petitioners.
30. The contention of the learned counsel for the petitioners is also not maintainable on the ground that there is no deed with regard to transfer of land by any authority or individual in their favour. Since the petitioners have also claimed their right on behalf of ex Zamindar and the then ex Zamindar from whom they had said to take the land, had no right, title to transfer the land or to give the land thus, the contention is not tenable. Second ground as taken by the learned counsel for the petitioners is that nearly hundred persons were affected by flood of river Sharda and their houses and belongs were destroyed and they have been rehabilitated by the district administration there. Thus the land should be allotted in their favour.
31. In reply of these contentions, learned counsel for the respondents has submitted that the following writ petitions have been filed before the competent court, which were disposed of accordingly and the petitioners have no right and title over the land:
1. W.P. No.103 (Ceiling) of 1998; Hori Lal vs. State of U.P. (Dismissed on 24.7.1999).
2. W.P. No.5160 (MB) of 1999; Gaon Sabha vs. State of U.P. (Dismissed on 2.12.1999).
3. W.P. No.3555 (MB) of 1999; Daya Shanker vs. State of U.P. (Pending).
4. W.P. No.3336 (MB) of 1999; Ram Avadh vs. State of U. P. (Pending).
5. W.P. No.14 (Ceiling) 2000; Faujdar vs. State of U.P. (Dismissed on 3.11.2000).
6. W.P. No.19 (Ceiling) of 2000; Lala Ram vs. State of U.P. (Pending).
7. W.P. No.25 (Ceiling) of 2000; Devendra vs. State of U.P. (Pending)
8. W.P. No.134 (Ceiling) 2003; Raj Deo vs. State of U.P. (Pending).
32. After notification of the Forest, the area of the land was bounded by the boundary pillars and trenches on the spot and is under the management of the Forest Department. According to the Forest Conservation Act, 1980, the land in dispute, which is still a dense forest, cannot be utilized for any purpose other than forestry purposes.
33. Learned counsel for the petitioners has submitted that the petitioners are residing in those area but the contention has been controverted by the State by filing counter affidavit in para-8, where it has been submitted that there are no huts or houses of the petitioners or any other persons on the said land as stated in the petition. The area is said to be reserved forest and actually the petitioners or other persons have no possession over the land in dispute nor made any hut as stated in the petition.
34. During pendency of this writ petition, an order was passed on 16.08.2016 with direction to the District Magistrate to file an affidavit and the District Magistrate has filed the affidavit on 05.09.2016, which is on record. In the affidavit, it has been stated that the land in question measuring 436.858 hectare is recorded in the name of Forest Department at Khata No.2327 in Fasli year 1415 to 1420. The land in dispute is a reserved forest covered by deep forest and the same is the property of the Forest Department and under the provisions of the National Forest Policy/Forest Preservation Act, 1980, use of any forest land for non forestry purposes has not only been restricted but such act has also been declared as punishable offence. The District Magistrate has further constituted a committee comprising of (1) Regional Forest Officer, Majhgai Range, (2) Tehsildar-Palia, (3) Deputy Divisional Forest Officer, Palia and (4) Sub Divisional Officer, Palia, District Kheri for enquiring into the update status in the matter and the said Committee has submitted its report dated 26.8.2016 which reveals that the petitioners are not permanent residents of village Majhgai and neither the petitioners can be said to be the disabled persons nor they are entitled to any rehabilitation package. The Committee has also recorded the statement of the Village Pradhan and other villagers in order to know as to whether the petitioners are the permanent residents of Village Majhgai or not and the fact was revealed that the petitioners are not permanent residents of that village.
35. The State Government has issued rehabilitation policy for flood affected persons vide Government Order dated 31.07.2012 and in the said Government Order all the provisions have been made for rehabilitation of flood affected persons of the State of U.P. and in pursuance of that policy in the financial year 2015-16 in Tehsil Nighasan of District Kheri an area about 6.448 hectare land costing to Rs.2,23,64,206/- was purchased and accommodation has been made available to 510 families, further in Tehsil Lakhimpur 4.485 hectare land costing to Rs.65,69,469/- was purchased and accommodation has been available to 280 families, in Tehsil Gola 0.168 hectare land costing to Rs.6,30,000/- was purchased and accommodation has been made available to 14 families, in Tehsil Dhaurahra 4.006 hectare land costing to Rs.50,07,500/- was purchased and accommodation has been made available to 280 families and in Tehsil Palia 4.413 hectare land costing to Rs.1,46,22,190/- was purchased and accommodation has been made available to 314 families. The accommodations were made available to the flood affected persons.
36. The affidavit filed by the District Magistrate, Kheri reveals that the petitioners are not affected by natural calamities, thus they do not come within the policy as framed by the State. The petitioners are not permanent residents of village Majhgai and as such they are not entitled any benefit of rehabilitation policy. The statement of Pradhan and the report of the Committee reveal that the petitioners are not affect persons and they cannot be given the benefit of the rehabilitation policy.
37. Learned counsel for the respondents has further submitted that generally it would not be proper to intervene with the administrative matters.
38. In Dr. S.K. Kacker Vs. All India Institute of Medical Sciences & Ors., JT 1996 (8) SC 513, the Hon'ble Supreme Court held that any resolution or order which is inconsistent with the Statutory Rules, cannot be permitted to have any role to play or has any legal efficacy and, therefore, any order which is inconsistent with the Statutory Rules, has to be ignored.
In Union Territory Chandigarh Adm. & Ors. Vs. Managing Society, Goswami G.D.S.D.C., (1996) 7 SCC 665, the Hon'ble Supreme Court categorically held as under:-
"A contract in violation of the mandatory provisions of law can only be read and enforced in terms of the law and in no other way. The question of equitable estoppel does not arise. . . . . because there can be no estoppel against a Statute."
39. While dealing with the matter relating to the agreement or contract between the parties, Court can neither add anything nor subtract anything from the terms and conditions as laid down in the agreement dealing with the matter of the parties. ( Court cannot add or subtract anything in this Act).
40. Generally it would not be proper to intervene with the administrative or contractual matters. The parameters of the Court's power have been analyzed by the Supreme Court in Commissioner of Income-tax, Bombay & Ors,. Vs. Mahindra & Mahindra Ltd. & Ors., AIR 1984 SC 1182. We reproduce paragraph-11 of the said judgment-:
"By now, the parameters of the Court's power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled and it would be redundant to recapitulate the whole catena of decisions of this Court commencing from Barium Chemicals, 1966 Supp SCR 311: (AIR 1967 SC 295) case on the point. Indisputably, it is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to, or has been arrived at by the authority misdirecting itself by adopting a wrong approach, or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same. This Court in one of its later decisions in Smt. Shalini Soni Vs. Union of India, (1981) 1 SCR 962; (AIR 1981 SC 431), has observed thus: "It is an unwritten rule of the law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote". Suffice it to say that the following passage appearing at pages 285-86 in Prof. de Smith's treatise ''Judicial Review of Administrative Action' (4th Edn.) succinctly summarises the several principles formulated by the Courts in that behalf thus: "The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations, must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories; failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account; and where an authority hands over its discretion to another body it acts ultra vires. Nor, is it possible to differentiate with precision the grounds of invalidly contained within each category".
In State of U.P. & Ors., Vs. Renusagar Power Co. & Ors,. AIR 1988 SC 1737 it was held that exercise of administrative power will be set aside if there is a manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary.
The famous "Wednesbury Case" Associated Provincial Picture Houses Ltd. Us. Wednesbury Corp. (1947) 2 All ER 680 (CA) is considered to be the landmark in so far as the basic principles relating to judicial review of administrative or statutory direction are concerned. We quote a passage from the judgment of Lord Greene which is as follows:-
"It is true that discretion must be exercised reasonably. Now what does that mean? Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word ''unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters, which he is bound to consider. He must exclude from his consideration matters, which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting ''unreasonably'. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority...... . In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another."
The principles of judicial review of administrative action were further summarized in 1985 by Lord Diplock in Council of Civil Service Unions Vs. Minister for the Civil Service 1984 (3) Al. ER. 935, (commonly known as CCSU case) as illegality, procedural impropriety and irrationality. He said more grounds could in future become available, including the doctrine of proportionality which was a principle followed by certain other members of the European Economic Community. Lord Diplock observed in this case as follows:-
"....... Judicial review has I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call ''illegality', the second ''irrationality' and the third ''procedural impropriety'. That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ''proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community."
Lord Diplock explained ''irrationality' as follows:
"By ''irrationality' I mean what can by now be succinctly referred to as ''Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
In Union of India & Anr,. Vs. G.Ganayutham (1997) 7 SCC 463 the Supreme Court after referring to the aforesaid two cases namely Wednesbury case and CCSU case held as follows:-
"We are of the view that even in our country-in cases not involving fundamental freedoms-the role of our courts/tribunals in administrative law is purely secondary and while applying Wednesbury and CCSU principles to test the validity of executive action or of administrative action taken in exercise of statutory powers, the courts and tribunals in our country can only go into the matter, as a secondary reviewing court to find out if the executive or the administrator in their primary roles have arrived at a reasonable decision on the material before them in the light of Wednesbury and CCSU tests. The choice of the options available is for the authority; the court/tribunal canot substitute its view as to what is reasonable."
In Indian Railway Construction Co. Ltd. Vs. Ajay Kumar (2003) 4 SCC 579 the Supreme Court held as follows-
"It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary. ............If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated."
In People's Union for Civil Liberties & Anr. Vs. Union of India & ors., 2004 AIR SCW 379 while dealing with the same issue, the Supreme Court observed as under:-
"The jurisdiction of this Court in such matter is very limited. The Court will not normally exercise its power of judicial review in such matters unless it is found that formation of belief by the statutory authority suffers from mala fide, dishonesty or corrupt practice. The order can be set aside if it is held to be beyond the limits for which the power has been conferred upon the authorities by the Legislature or is based on the grounds extraneous to the legislation and if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction required thereunder."
In State of N.C.T. of Delhi & Anr. Vs. Sanjeev alias Bittoo 2005 AIR SCW 1987 the Supreme Court in paragraphs 16 and 18 held as follows:-
"16.....................................................................................................One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is ''illegality' the second ''irrationality' and the third ''procedural impropriety'."
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18. The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality, and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient."
The principles applied in judicial review of administrative decisions relating to acceptance of the terms and conditions set out in the contract have been considered by the Supreme Court in Tata Cellular Vs. Union of India AIR 1996 SC 11 and the same are as follows:-
"The principles deducible from the above are:
(1) The modern trend points to judicial restraint in administrative action.
(2) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made.
(3) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.
(4) The terms of the invitation to tender cannot be open to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations through several tiers. More often than not, such decisions are made qualitatively by experts.
(5) The Government must have freedom of contract. In other words, a fairplay in the joints is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness (including its other facts pointed out above) but must be free from arbitrariness not affected by bias or actuated by mala fides.
(6) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure."
In Sterling Computers Ltd., Vs. M/s. M & N Publications Ltd & Ors,. AIR 1996 SC 51 the Supreme Court observed as follows:-
"While exercising the power of judicial review, in respect of contracts entered into on behalf of the State, the Court is concerned primarily as to whether there has been any infirmity in the "decision making process".
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By way of judicial review the Court cannot examine the details of the terms of the contract which have been entered into by the public bodies or the State. Courts have inherent limitations on the scope of any such enquiry."
In Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation & Ors,. (2000) 5 SCC 287 it was held by the Supreme Court:-
"Broadly stated, the courts would not interfere with the matter of administrative action or changes made therein, unless the Government's action is arbitrary or discriminatory or the policy adopted has no nexus with the object it seeks to achieve or is mala fide."
In Air India Ltd. Vs. Cochin International Airport Ltd. & Ors,. (2000) 2 SCC 617 the Supreme Court held as follows:-
"Even when some defect is found in the decision-making process the court must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The court should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the court should intervene."
After considering the aforesaid two decisions the Supreme Court in Directorate of Education & Ors,. Vs. Educomp Datamatics Ltd. & Ors,. (2004) 4 SCC 19 observed as follows:-
"It has clearly been held in these decisions that the terms of the invitation to tender are not open to judicial scrutiny, the same being in the realm of contract. That the Government must have a free hand in setting the terms of the tender. It must have reasonable play in its joints as a necessary concomitant for an administrative body in an administrative sphere. The courts would interfere with the administrative policy decision only if it is arbitrary, discriminatory, mala fide or actuated by bias. It is entitled to pragmatic adjustments which may be called for by the particular circumstances. The courts cannot strike down the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. The courts can interfere only if the policy decision is arbitrary, discriminatory or mala fide."
The same principles were followed by the Supreme Court in M/s. Master Marine Services Pvt. Ltd. Vs. Metcalfe & Hodgkinson Pvt. Ltd. & Anr., 2005 AIR SCW 2189.
41. In exercise of power of judicial review, the Courts do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on the ground of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed arbitrariness, irrationality, perversity and mala fide, render the policy unconstitutional. Unless a policy decision is demonstrably capricious or arbitrary and not informed by any reason or discriminatory or infringing any Statute or the Constitution, it cannot be a subject of judicial interference. However, if the policy cannot be touched on any of these grounds, the mere fact that it may affect business interests of a party does not justify invalidating the policy. (Vide M/s. Ugar Sugar Works Ltd. Vs. Delhi Administration & Ors., AIR 2001 SC 1447; State of Himachal Pradesh & Anr. Vs. Padam Dev & Ors., (2002) 4 SCC 510; Balco Employees' Union (Regd) Vs. Union of India & Ors., AIR 2002 SC 350; State of Rajasthan & Ors. Vs. Lata Arun AIR 2002 SC 2642; and Federation of Railway Officers Association Vs. Union of India, (2003) 4 SCC 289).
In Union of India & Anr. Vs. International Trading Company & Anr. (2003) 5 SCC 437, the Supreme Court pointed out that the Policy of the Government, even in contractual matters, must satisfy the test of reasonableness and every State action must be informed by reason. Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. The Court further held as under:-
"15. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.
16. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in a different manner which does not disclose any discernible principle which is reasonable itself shall be labeled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary." (Emphasis added).
In Union of India Vs. Dinesh Engineering Corpn. & Anr. (2001) 8 SCC 491 the Supreme Court observed as follows:-
".........Where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record.......... . Any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so, then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution."
In Krishnan Kakkanth Vs. Govt. of Kerala, AIR 1997 SC 128; the Hon'ble Apex Court held that the judicial review of policy decision is permissible in exceptional circumstances only when the Court is of the view that the order suffers from arbitrariness and unreasonableness. The Court observed as under:-
"To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial if a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, Court should avoid embarking on uncharted ocean of public policy."
The Supreme Court in Kailash Chandra Sharma Vs. State of Rajasthan & Ors., AIR 2002 SC 2877 upheld the Full Bench judgment of the Rajasthan High Court in Deepak Kumar Suthar Vs. State & Ors., 2000 Lab IC 1 wherein the Court had struck down the policy decision of the Government granting bonus marks on the ground of residence in public employment being ultra vires the provisions of Article 14 and 16 of the Constitution. The Supreme Court held that policy decision giving weightage to the candidates in public employment on the ground of residence was impermissible in view of the Constitutional provisions. The policy decision was, therefore, bad and in such a case judicial review was found to be warranted.
The Supreme Court in Cholan Roadways Ltd. Vs. G. Thirugnanasambandam, AIR 2005 SC 570, has gone a step further by bringing "errors of facts" within the scope of judicial review. While deciding the said case, reliance was placed upon the judgment in E. Vs. Secretary of State for the Home Department, (2004) 2 Weekly Law Report, 1351, wherein it has been held that a review of the merits of the decision making process is fundamental to the Court's jurisdiction. The power of review may even extend to a decision on a question of fact. The error sought to be corrected must be undeniably a significant factor in the decision making process.
In R.K. Garg Vs. Union of India & Ors., AIR 1981 SC 2138, the Supreme Court considered the validity of the provisions of the Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981 and Special Bearer Bonds (Immunities and Exemptions) Act, 1981, which was provided for exemption and immunity from criminal liability of the persons who invest money in purchasing the Special Bearer Bonds from the income never disclosed earlier. The Court made the following observations:-
"It is clear that Article 14 does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of attaining specific ends. What is necessary in order to pass the test of permissible classification under Article 14 is that the classification must not be "arbitrary, artificial or evasive" but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature...........Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J., that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or straight jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be dealt with greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights are involved. ........The Court must always remember that "legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry" that exact wisdom and nice adaption of remedy are not always possible and that "judgment is largely a prophecy based on meagre and uninterpreted experience". Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method and therefore it cannot provide for all possible situations or anticipate all possible abuse. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid.............There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues. (Emphasis added).
In State of M.P. & Ors. Vs. Nandlal Jaiswal & Ors., (1986) 4 SCC 566, the Hon'ble Supreme Court re-examined the scope of Article 14 of the Constitution while having a judicial review of the executive order of the State relating to trade and business and held as under:-
"But, while considering the applicability of Article 14 in such a case, we must bear in mind that, having regard to the nature of the trade or business, the Court would be slow to interfere with the policy laid down by the State Government for grant of licences for manufacture and sale of liquor. The Court would, in view of the inherently pernicious nature of the commodity allow a large measure of latitude to the State Government in determining its policy of regulating, manufacture and trade in liquor. Moreover, the grant of licences for manufacture and sale of liquor would essentially be a matter of economic policy where the court would hesitate to intervene and strike down what the State Government had done, unless it appears to be plainly arbitrary, irrational or mala fide..........in regard to legislation relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive decision may not be placed on as high a pedestal as legislative judgment in so far as judicial deference is concerned. We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call 'trial and error method' and, therefore, its validity cannot be tested on any rigid 'a priori' considerations or on the application of any strait jacket formula. The court must while adjudging the constitutional validity of an executive decision relating to economic matters grant a certain measure of freedom or 'play' in the "joints" to the executive.........The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide."
While deciding the said case, the Apex Court relied upon the admonition given by the Frankfurter, J. in Morey v. Doud, (1957) 354 US 457:-
"In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference, to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events - self limitation can be seen to be the path to judicial wisdom and institutional prestige and stability."
A similar view has been reiterated in M. P. Oil Extraction & Anr. Vs. State of M.P. & Ors., (1997) 7 SCC 592.
In Sterling Computers Ltd. Vs. M/s. M & N Publications Ltd., AIR 1996 SC 51, the Hon'ble Supreme Court held as under:-
"It is not possible for Courts to question and adjudicate every decision taken by an authority, because many of the Government Undertakings which in due course have acquired the monopolist position in matters of sale and purchase of products and with so many ventures in hand, they can come out with a plea that it is not always possible to act like a quasi-judicial authority while awarding contracts. Under some special circumstances a discretion has to be conceded to the authorities who have to enter into contract giving them liberty to assess the overall situation for purpose of taking a decision as to whom the contract be awarded and at what terms. If the decisions have been taken in bona fide manner although not strictly following the norms laid down by the Courts, such decisions are upheld on the principle laid down by Justice Holmes, that Courts while judging the constitutional validity of executive decisions must grant certain measure of freedom of play in the joints to the executive........ On the basis of those judgments it cannot be urged that this Court has left to the option of the authorities concerned whether to invite tenders or not according to their own discretion and to award contracts ignoring the procedures which are basic in nature, taking into account factors which are not only irrelevant but detrimental to the public interest."
The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. "The principles of governance has to be tested on the touchstone of justice, equity, fair play and if decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the fact of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade; that decision cannot be allowed to operate. (Vide Onkar Lal Bajaj & Ors. Vs. Union of India & Ors., AIR 2003 SC 2562).
In State of Karnataka & Anr. Vs. All India Manufacturers Organisation & Ors., AIR 2006 SC 1846, the Hon'ble Supreme Court examined the scope of change of policy with the change of the Government. After considering the scope of judicial review in contractual matters, the Court examined as under what circumstances, the government should revoke the decision taken by the earlier Government. The Court held that an instrumentality of the State cannot have a case to plead from that of the State and the policy in respect of a particular project adopted by the State Government should not be changed with the change of the government. The Court further held as under:-
"It is trite law that when one of the contracting parties is "State" within the meaning of Article 12 of the Constitution, it does not cease to enjoy the character of "State" and, therefore, it is subjected to all the obligations that "State" has under the Constitution. When the State's acts of omission or commission are tainted with extreme arbitrariness and with mala fides, it is certainly subject to interference by the Constitutional Courts in this country........We make it clear that while the State Government and its instrumentalities are entitled to exercise their contractual rights under the FWA, they must do so fairly, reasonably and without mala fides; in the event that they do not do so, the Court will be entitled to interfere with the same.
Taking an overall view of the matter, it appears that there could hardly be a dispute that the Project is a mega project which is in the larger public interest of the State of Karnataka and merely because there was a change in the Government, there was no necessity for reviewing all decisions taken by the previous Government, which is what appears to have happened. That such an action cannot be taken every time there is a change of Government."
While deciding the said case, reliance had been placed by the Court in its earlier judgments in State of U.P. & Anr. Vs. Johri Mal, AIR 2004 SC 3800; and State of Haryana Vs. State of Punjab & Anr., AIR 2002 SC 685. In the former, the Apex Court held that the panel of District Government Counsel should not be changed only on the ground that the panel had been prepared by the earlier Government. In the later case, while dealing with the river water-sharing dispute between two States, the Court observed thus :
".........in the matter of governance of a State or in the matter of execution of a decision taken by a previous Government, on the basis of a consensus arrived at, which does not involve any political philosophy, the succeeding Government must be held duty-bound to continue and carry on the unfinished job rather than putting a stop to the same."
42. The question that arises for consideration is regarding the scope of judicial interference in matters of administrative decisions. Administrative action is stated to be referable to the broad area of governmental activities in which the repositories of power may exercise executive, quasi-legislative and quasi-judicial functions.
The parameters of the Court's power have been analysed by the Hon'ble Supreme Court in Commissioner of Income-tax, Bombay & Ors. Vs. Mahindra & Mahindra Ltd. & Ors., AIR 1984 SC 1182 and held that by now, the parameters of the Court's power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled and it would be redundant to recapitulate the whole catena of decisions of this Court commencing from Barium Chemicals & Anr. Vs. Company Law Board & Ors., AIR 1967 SC 295 case on the point. "It is a settled position that if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to, or has been arrived at by the authority misdirecting itself by adopting a wrong approach, or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same."
In Smt. Shalini Soni Vs. Union of India, AIR 1981 SC 431, wherein it had been held that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.
The principles applied in judicial review of administrative decisions have also been considered by the Hon'ble Supreme Court in Tata Cellular Vs. Union of India, AIR 1996 SC 11, held that in such a case the Court should keep in mind that the Court does not sit as a court of appeal but merely reviews the manner in which the decision was made; the Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible; and quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure.
In Krishan Yadav & Anr. Vs. State of Haryana & Ors., AIR 1994 SC 2166, the Hon'ble Supreme Court observed that it is highly regrettable that the holders of public offices both big and small have forgotten that the offices entrusted to them are a sacred trust. Such offices are meant for use and not abuse. From a Minister to a menial everyone has been dishonest to gain undue advantages. Thus, in such a fact situation, scope of judicial review attains paramount importance.
In B. Ramanjini & Ors. Vs. State of Andhra Pradesh & Ors., AIR 2002 SC 2023, the Supreme Court enlightened what approach the Courts should adopt while dealing with matters relating to cancellation of examination and after referring to Bihar School Education Board (supra) observed that in such matters wide latitude should be shown to the Government and the courts should not unduly interfere with the action taken by the Government which is in possession of the necessary information and takes action upon the same. The courts ought not to take the action lightly and interfere with the same particularly when there was some material for the Government to act one way or the other.
In Union of India & Ors. Vs. Tarun Kumar Singh & Ors., AIR 2001 SC 2196 while deciding the similar case the Supreme Court held that "in view of the allegation of malpractice, the departmental authorities has held an enquiry into the matter and the result of that enquiry has revealed gross irregularities and illegalities", thus no interference was warranted with the order passed by the statutory authority.
In Zora Singh Vs. J.M. Tandon & Ors., AIR 1971 SC 1537, the Hon'ble Apex Court while dealing with the issue of scope of judicial review, held as under:-
"The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior Court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior Court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari the superior Court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of sufficiency of evidence." (Emphasis added)
43. It is settled law that when the action of the State or its instrumentalities is not as per the rules or regulations and supported by a statute, the Court must exercise its jurisdiction to declare such an act to be illegal and invalid.
In Sirsi Municipality Vs. Cecelia Kom Francis Tellis, AIR 1973 SC 855, the Supreme Court observed that "the ratio is that the rules or the regulations are binding on the authorities."
Similarly, a Constitution Bench of the Hon'ble Supreme Court in Sukhdev Singh & Ors. Vs. Bhagatram Sardar Singh Raghuvanshi & Anr., AIR 1975 SC 1331, has observed as under:-
"The statutory authorities cannot deviate from the conditions of service. Any deviation will be enforced by legal sanction of declaration by Courts to invalidate actions in violation of rules and regulations. The existence of rules and regulations under statute is to ensure regular conduct with a distinctive attitude to that conduct as a standard. The statutory regulations in the cases under consideration give the employees a statutory status and impose restrictions on the employer and the employee with no option to vary the conditions............In cases of statutory bodies there is no personal element whatsoever because of the impersonal character of statutory bodies..............the element of public employment or service and the support of statute require observance of rules and regulations. Failure to observe requirements by statutory bodies is enforced by courts by declaring (action) in violation of rules and regulations to be void. This Court has repeatedly observed that whenever a man's rights are affected by decision taken under statutory powers, the Court would presume the existence of a duty to observe the rules of natural justice and compliance with rules and regulations imposed by statute." (Emphasis added).
Similar view has been taken by the Supreme Court in Ambica Quarry Works etc. Vs. State of Gujarat & Ors., AIR 1987 SC 1073; and Commissioner of Police, Bombay Vs. Gordhandas Bhanji, AIR 1952 SC 16. In both the cases, the Apex Court relied upon the judgment of the House of Lord in Julius Vs. Lord Bishop of Oxford, (1880) 5 AC 214, wherein it was observed as under:-
"There may be something in the nature of thing empowered to be done, something in the object for which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so."
In Commissioner of Police (supra), the Apex Court observed as under:-
"Public authorities cannot play fast and loose with the powers vested in them, and persons to whose detriment orders are made are entitled to know with exactness and precision what they are expected to do or forbear from doing and exactly what authority is making the order.........An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is a duty which cannot be shirked or shelved nor it be evaded, performance of it can be compelled."
In Dr. Meera Massey Vs. Dr. S.R. Mehrotra & Ors., AIR 1998 SC 1153, the Apex Court observed as under:-
"If the laws and principles are eroded by such institutions, it not only pollutes its functioning deteriorating its standard but also exhibits............wrong channel adopted..........If there is any erosion or descending by those who control the activities all expectations and hopes are destroyed. If the institutions perform dedicated and sincere service with the highest morality it would not only up-lift many but bring back even a limping society to its normalcy."
The Supreme Court has taken the same view in Ram Chand & Ors. Vs. Union of India & Ors., (1994) 1 SCC 44, and held that "the exercise of power should not be made against the spirit of the provisions of the statute, otherwise it would tend towards arbitrariness."
In Ramniklal N. Bhutta & anr. Vs. State of Maharashtra & ors., AIR 1997 SC 1236, the Hon'ble Apex Court observed as under:-
"The power under Art. 226 is discretionary. It will be exercised only in furtherance of justice and not merely on the making out of a legal point. ...... the interest of justice and public interest coalesce. They are very often one and the same. ...... The Courts have to weight the public interest vis-a-vis the private interest while exercising the power under Art. 226.... indeed any of their discretionary powers."
In view of the above, we are of the considered opinion that every statutory provision requires strict adherence, for the reason that the statute creates rights in favour of the citizens, and if any order is passed de hors the same, it cannot be held to be a valid order and cannot be enforced. As the statutory provision creates legal rights and obligations for individuals, the statutory authorities are under a legal obligation to give strict adherence to the same and cannot pass an order in contravention thereof, treating the same to be merely decoration pieces in his office.
44. The State authorities or its instrumentalities are bound to follow the rules and provisions of Forest Act. They cannot take against the provisions and cannot defeat the provisions of law.
45. Learned counsel for the petitioners has further submitted that the petitioners have a legitimate expectation for allotment of the land on the ground of rehabilitation policy.
46. Learned counsel for the respondents has submitted that legitimate expectation does not extend to do the thing which has become impossible due to certain intervening reasons or due to operation of law.
47. A person can have a legitimate expectation only in consonance with the statute and the rules framed thereunder and not in contravention of the same. This doctrine cannot be invoked for doing something contrary to law. The doctrine also does not apply against the public authorities when their mistaken advice or representation is found to be in breach of a statutory provision. The legal maxim "salus populi est suprema lex" (regard for public welfare is the highest law) comes to an aid.
In Union of India & Ors. Vs. Hindustan Development Corporation & Ors, AIR 1994 SC 988 the Supreme Court held as follows:-
"On examination of some of these important decisions it is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing of an undertaking is taken. The doctrine does not give scope to claim relief straight way from the administrative authorities as no crystallized right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words where a person's legitimate expectation is not fulfilled by taking a particular decision then decision-maker should justify the denial of such expectation by showing some overriding public interest." (Emphasis added).
In Punjab Communications Ltd Vs. Union of India & Ors., AIR 1999 SC 1801, the Supreme Court held as follows:-
"......the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision-maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way............ reliance must have been placed on the said representation and the representee must have thereby suffered detriment..........The more important aspect, in our opinion, is whether the decision-maker can sustain the change in policy by resort to Wednesbury principles of rationality or whether the court can go into the question whether the decision-maker has properly balanced the legitimate expectation as against the need for a change. In the latter case the court would obviously be able to go into the proportionality of the change in the policy......The choice of the policy is for the decision-maker and not for the Court........The protection for substantive legitimate expectation was based on Wednesbury unreasonableness. In sum, this means that the judgment whether public interest overrides the substantive legitimate expectation of individuals will be for the decision-maker who has made the change in the policy and the courts will intervene in that decision only if they are satisfied that the decision is irrational or perverse."
While deciding the said case, reliance was placed by the Apex Court on its earlier judgments in M.P. Oil Extraction Vs. State of Madhya Pradesh, (1997) 7 SCC 592; and National Buildings Construction Corporation Vs. S.Raghunathan, (1998) 7 SCC 66.
The doctrine of legitimate expectation has a meaning that the statements of policy or intention of the Government or its Department in administering its affairs should be without abuse or discretion. The policy statement could not be disregarded unfairly or applied selectively for the reason that unfairness in the form of unreasonableness is akin of violation of natural justice. It means that said actions have to be in conformity of Article 14 of the Constitution, of which non arbitrariness is a second facet. Public Authority cannot claim to have unfettered discretion in public law as the authority is conferred with power only to use them for public good. Generally legitimate expectation has essentially procedural in character as it gives assurance of fair play in administrative action but it may in a given case be enforced as a substantive right. But a person claiming it has to satisfy the Court that his rights had been altered or withdrawn on some rational ground or he has received assurance from the decision making Authority which is not fulfilled, i.e. , the kind of promissory estoppel.
This doctrine being an aspect of Article 14 of the Constitution by itself does not give rise to enforceable right but it provides a reasonable test to determine as to whether action taken by the Government or authority is arbitrary or otherwise, rational and in accordance with law.
In Kuldeep Singh Vs. Government of NCT of Delhi, AIR 2006 SC 2652, the issue of legitimate was considered observing that the State actions must be fair and reasonable. Non-arbitrariness on its part is significant in the field of governance. The discretion should not be exercised by the State instrumentality whimsically or capriciously but a change in policy decision, if found to be valid in law, any action taken pursuant thereto or in furtherance thereof should not be invalidated.
Similarly in Ashok Smokeless Coal India (P) Ltd. & Ors. Vs. Union of India & Ors., (2007) 2 SCC 640, the Court held as under:-
"Principles of natural justice will apply in cases where there is some right which is likely to be affected by an act of administration. Good administration, however, demands observance of doctrine of reasonableness in other situations also where the citizens may legitimately expect to be treated fairly. Doctrine of legitimate expectation has been developed in the context of principles of natural justice."
48. Learned counsel for the petitioners has submitted that the impugned order is violative of legitimate expectation of the petitioners and in violation of right to life, right to livelihood and right to dignity of life which is protected by Article 21 of the Constitution of India.
49. We have considered the question whether the petitioners can invoke the doctrine of legitimate expectation for supporting their claim. This part of the petitioners' claim is founded on their assertion that notwithstanding the contrary. They were of the hope that they will be provided forest land in the rehabilitation scheme.
50. The above version or expectation of the petitioners is not tenable and cannot be accepted. The pleading of the parties on record do not show that any competent authority of the Government of India or State had ever given any assurance much less made a promise to the petitioners that they will be either adjusted or be given other financial benefits or the land at any interval of time. As a matter of fact, the petitioners are not flood affected persons. In this scenario, the doctrine of legitimate expectation cannot be invoked for sustaining the argument of the petitioners for equal providing forest land for housing or/and agriculture.
51. The doctrine of legitimate expectation is a nascent addition to the rules of natural justice.
52. In India, the Courts have gradually recognized that while administering the affairs of the State, the Government and its departments are expected to honour the policy statements and treat the citizens without any discrimination. The theory of legitimate expectation first found its mention in Navjyoti Coop. Group Housing Society v. Union of India : AIR1993SC155 . In that case the right of a housing society for right to priority in the matter of registration was recognized in the following words:
... In the aforesaid facts, the Group Housing Societies were entitled to `legitimate expectation' of following consistent past practice in the matter of allotment, even though they may not have any legal right in private law to receive such treatment. The existence of `legitimate expectation' may have a number of different consequences and one of such consequences is that the authority ought not to act to defeat the `legitimate expectation' without some overriding reason of public policy to justify its doing so. In a case of `legitimate expectation' if the authority proposes to defeat a person's `legitimate expectation' it should afford him an opportunity to make representations in the matter. In this connection reference may be made to the discussions on `legitimate expectation' at page 151 of Volume 1(1) of Halsbury's Laws of England -- Fourth Edition (re-issue). We may also refer to a decision of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service. It has been held in the said decision that an aggrieved person was entitled to judicial review if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment on such reasons.
It may be indicated here that the doctrine of `legitimate expectation' imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such `legitimate expectation'. Within the conspectus of fair dealing in case of `legitimate expectation', the reasonable opportunities to make representation by the parties likely to be affected by any change of consistent past policy, come in. We have not been shown any compelling reasons taken into consideration by the Central Government to make a departure from the existing policy of allotment with reference to seniority in Registration by introducing a new guideline.
53. In Food Corporation of India v. Kamdhenu Cattle Feed Industries : AIR1993SC1601, the Court considered whether rejection of the tender of the respondent was vitiated by arbitrariness. The claim of the respondents was negated in the following words:
In the contractual sphere as in all other State actions, the State and all its instrumentalities have to conform to Article 14 of the Constitution of which non- arbitrariness is a significant facet. There is no unfettered discretion in public law: A public authority possesses powers only to use them for public good. This imposes the duty to act fairly and to adopt a procedure which is `fairplay in action'. Due observance of this obligation as a part of good administration raises a reasonable or legitimate expectation in every citizen to be treated fairly in his interaction with the State and its instrumentalities, with this element forming a necessary component of the decision making process in all State actions. To satisfy this requirement of non- arbitrariness in a State action, it is, therefore, necessary to consider and give due weight to the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given case. The decision so made would be exposed to challenge on the ground of arbitrariness. The rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic, but provides for control of its exercise of by judicial review.
The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non- arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non- arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this context. [Emphasis supplied]
54. In Union of India and Ors. v. Hindustan Development Corporation and Ors. AIR1994SC988 the Court considered the doctrine of legitimate expectation and held:
For legal purposes, the expectation cannot be the same as anticipation. It is different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground of a right. However earnest and sincere a wish, a desire or a hope may be and however confidently one may look to them to be fulfilled, they by themselves cannot amount to an assertable expectation and a mere disappointment does not attract legal consequences. A pious hope even leading to a moral obligation cannot amount to a legitimate expectation. The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Again it is distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and protectable. Every such legitimate expectation does not by itself fructify into a right and therefore it does not amount to a right in the conventional sense.
55. In Punjab Communications Ltd. v. Union of India : [1999]2SCR1033, the Court observed as under:
The principle of `legitimate expectation' is still at a stage of evolution. The principle is at the root of the rule of law and requires regularity, predictability and certainty in the Government's dealings with the public. The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before the decision is made....
However, the more important aspect is whether the decision-maker can sustain the change in policy by resort to Wednesbury principles of rationality or whether the court can go into the question whether the decision-maker has properly balanced the legitimate expectation as against the need for a change.... In sum, this means that the judgment whether public interest overrides the substantive legitimate expectation of individuals will be for the decision-maker who has made the change in the policy. The choice of the policy is for the decision-maker and not for the court. The legitimate substantive expectation merely permits the court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made.
(emphasis in original)
56. In J.P. Bansal v. State of Rajasthan : [2003]2SCR933 , the Court refused to invoke the doctrine of legitimate expectation in favour of the appellant who claimed compensation of pre- mature termination of the contractual appointment as Judicial Member of the Rajasthan Taxation Appellate Tribunal.
57. In Secretary, State of Karnataka v. Uma Devi (supra), the Constitution Bench referred to the claim of the employees based on the doctrine of legitimate expectation and observed as under:
The doctrine can be invoked if the decisions of the administrative authority affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there have been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn.
58. In Kuldeep Singh v. Govt. of NCT of Delhi AIR2006SC2652 , the Court refused to invoke the doctrine of legitimate expectation to nullify the revised policy decision taken by the Government not to grant fresh liquor licenses.
59. In Ram Pravesh Singh v. State of Bihar (2007)ILLJ202SC, a two-Judges Bench considered the question whether the employees of Futwah Phulwarisharif Gramya Vidyut Sahakari Samiti Ltd., which was a cooperative society, could claim absorption in the services of Bihar State Electricity Board by invoking the doctrine of legitimate expectation. The facts of that case show that the society was brought into existence by the State Government, the Electricity Board and the Rural Electrification Corporation for effective implementation of Rural Electrification Scheme meant for better distribution of electricity to rural areas, but the license of the society was revoked in the year 1995 and the Board refused to absorb the employees of the society. The learned Single Judge and Division Bench of the High Court declined to interfere with the decision of the Board. This Court dismissed the appeal of the employees and observed:
What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term "established practice" refers to a regular, consistent, predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by the courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. In short, a person can be said to have a "legitimate expectation" of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above "fairness in action" but far below "promissory estoppel". It may only entitle an expectant: (a) to an opportunity to show cause before the expectation is dashed; or (b) to an explanation as to the cause for denial. In appropriate cases, the courts may grant a direction requiring the authority to follow the promised procedure or established practice. A legitimate expectation, even when made out, does not always entitle the expectant to a relief. Public interest, change in policy, conduct of the expectant or any other valid or bona fide reason given by the decision-maker, may be sufficient to negative the "legitimate expectation". The doctrine of legitimate expectation based on established practice (as contrasted from legitimate expectation based on a promise), can be invoked only by someone who has dealings or transactions or negotiations with an authority, on which such established practice has a bearing, or by someone who has a recognised legal relationship with the authority.
60. After noticing the judicial precedents on the subject, we are of the view that the petitioners cannot invoke the theory of legitimate expectation for compelling the respondents to provide land vested in the forest department.
61. It has further been contended by the learned counsel for the State that this is not a public interest litigation and the reliefs as sought under Article 226 of the Constitution of India by means of this writ petition are not maintainable. Further the claim of the petitioners has asserted in the petition their right through the ex Zamindar of the State or through ceiling land is not maintainable on the ground that the area has already declared as reserved forest. The petition has been cleverly drafted to create a right in favour of the petitioners through ex Raja or ex Zamindar.
62. After considering the contention of the learned counsel for the parties, we are of the view that the land in dispute is reserved forest and this cannot be utilized for any purpose other than the forestry. As per report of the Committee constituted by the District Magistrate, Kheri, the petitioners are not affected persons and thus, the reliefs as sought are not maintainable on the grounds as mentioned above. The petition lacks merit and deserves to be dismissed.
63. Accordingly, the writ petition is dismissed. No order as to costs.
64. Though we have dismissed the petition in terms of the relief sought by the petitioners in the writ petition yet we feel that simply dismissing the petition on legal grounds does not absolve the Courts from their duty not to close eyes of a situation, in which the petitioners are living. There is no dispute between the parties that the petitioners are Indian citizen. They have not migrated from any other country. They are natural citizen of this country. The Constitution of India applies to them with all its magnificence and benevolence. Needless to say that the protection of Article 21 as well as Article 14 shall be applicable to the petitioners as well. Admittedly, the petitioners are victims of natural calamity and they are displaced persons. Though some of them may not be genuine victims and may have involved themselves in the petition to get the benefit of any benevolent scheme launched for other genuine victims, but they can be segregated. While legitimate expectation to be allowed to live on a particular land could not be established by the petitioners, yet right to live with dignity under Article 21 does not need any corroboration with regard to any citizen of this Country. Constitution of India through its Preamble, is committed to social and economical justice and hence dismissal of this petition, cannot absolve the State Government to provide some solace in the form of rehabilitation somewhere or wherever possible in accordance with law. This kind of arrangement lies exclusively in the domain of the executive and the Court will be failing in its duty if it does not direct the State Government to rise to the occasion and provide some kind of rehabilitation scheme to the poor victims of its dislocation through flood. Such expectation from the Government without any specific demand from the State Government by the citizen of this Country are legitimate. This is essence of democratically elected State. With the abolition of feudal system and monarchy, the people of India have chosen the present form of Government. It is the people of India who have given themselves the present Constitution, naturally expect fruits of this tree, which they have planted with hope and trust. Thus, finally we observe and direct that this matter may be placed before the Chief Secretary of the State for his consideration and appropriate solution to the grievances of the petitioners, who are displaced and their households were dislocated due to flood.
Order Date :-27.11.2017 Anupam S/-