Allahabad High Court
State Of U.P.Thru D.F.O. vs A.D.J. Anpara Sonbhadra And Others on 13 November, 2019
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 6 Case :- WRIT - C No. - 22837 of 2002 Petitioner :- State Of U.P.Thru D.F.O. Respondent :- A.D.J. Anpara Sonbhadra And Others Counsel for Petitioner :- S.C. Counsel for Respondent :- R.C. Srivastava,R.V.Chaudhary,S.C. Hon'ble Yashwant Varma, J.
Heard Sri Sanjay Goswami, the learned Additional Chief Standing Counsel on behalf of the petitioners assisted by Sri Birendra Pratap Singh, the learned Standing Counsel and Sri B.K. Srivastava, learned Senior Counsel who appeared on behalf of the private respondents.
A. THE PRELIMINARY OBJECTION The respondents take a preliminary objection to the maintainability of the instant writ petition, which is noted as under. Sri Srivastava refers to the decision rendered by the Supreme Court on 20 November 1986 in Banwasi Sewa Ashram Vs. State of U.P. and Others1 and to the following observations as entered therein to submit that the State had unambiguously conceded to accepting the decisions rendered by the Additional District Judges [ADJ] in accordance with the procedural framework evolved. Reference in this respect is made to the following observation as entered in that decision: -
"10.
(3) When the Appellate Authority finds that the claim is admissible, the State Government shall (and it is agreed before us) honour the said decision and proceed to implement the same....."
According to Sri Srivastava, the directions as framed clearly debar the State from assailing the orders passed by the ADJ in suo moto appeal. In view thereof, it was his contention that the instant writ petition could not be maintained. Sri Srivastava further refers to the fact that the Supreme Court had in that order itself recorded that parties were agreed that if a claim were ultimately to be established before the authorities, an appropriate title deed would be issued to the claimants. Sri Srivastava also refers to the liberty granted by the Supreme Court to parties to move it for directions as and when necessary. Referring then to the subsequent order of 18 July 1994 passed in Banwasi Sewa Ashram, Sri Srivastava draws the attention of the Court to the directions contained therein to the effect that the Revenue Secretary of the State was to implement the decisions rendered by the various ADJ's. In the backdrop of the observations as made and contained in the aforementioned two orders, it was submitted that the State was clearly estopped from assailing the orders passed by the ADJ's |and that consequently the writ petitions at their behest must be held to be not maintainable.
It was also in that backdrop submitted that the tenor of the orders passed by the Supreme Court and referred to above, amounted to a debarment and ouster of the jurisdiction of this Court under Article 226 of the Constitution and that consequently any disputes that were to arise subsequently could be subjected to challenge only before the Supreme Court.
Sri Srivastava then drew the attention of the Court to an application purported to have been made by the State respondents before the Supreme Court on 15 February 2018 in which the following prayers are made:
"(a) declare null and void all such orders passed after 18.07.1994 by the Forest Settlement Officer and Additional District Judge;
(b) set aside the orders passed in favour of NTP, NCL, UPSEB and others by the Forest Settlement Officer and Additional District Judge as being illegal;
(c) set aside such orders in which the claim has already been adjudicated and fresh claims for the same land are being made by third parties;
(d) set aside the orders in which the Forest Settlement Officer and Additional District Judge have declared the land to be Jungle, Jhadi, Nadi and to be part of the proposed reserved Forest but have been illegally declared as Banjar and thereafter pattas given in favour of third parties;
(e) restrain the Forest Settlement Officer, Sonebhadra and Additional and Additional District Judge, Anpara at Obra from entertaining any fresh claims;
(f) direct the Forest Settlement Officer, Sonebhadra and Additional District Judge, Anpara at Obra to dispose of the pending claims, appeals within one week from the passing of the orders of this Hon'ble Court.
(g) Direct the Forest Settlement Officer Sonebhadra (Dy. Collector/SDM) prepare a proposal order u/s 20 to be handed over to the concerned DFO;
(h) PASS such other and further order as this Hon'ble Court may deem just and proper in the premises of this case."
Referring to the prayers as contained in that application, it was contended that since a general declaration with regard to the invalidity of all orders passed post 18 July 1994 has been sought, the present petition is liable to be dismissed on this score also since it is not permissible for the State to seek and pursue two parallel remedies.
Referring to the judgment rendered by a Full Bench of this Court in Smt. Rinki Vs. State of U.P. And Others2, it was lastly submitted that the Constitution binds all Courts and authorities to act in aid of the Supreme Court in light of the provisions made in Articles 141 and 144 of the Constitution. Referring to the principles laid down and recognized by the Full Bench in that decision, it was submitted that no Court can ignore or fail to comply with the directions that are issued by the Supreme Court. He refers to the position in law as encapsulated in paragraphs 32, 34 and 36 of that decision which read thus:
"32. Failure to comply with the direction of Hon'ble Supreme Court has always been deprecated. In this regard, reference may be had to paragraph 9 of the judgment in the case of Bharat Earth Movers v. Commissioner of Income Tax, Karnataka, (2000) 6 SCC 645, which is extracted herein below:
"9. Before parting, we would like to observe that when this appeal came up for hearing on 24.3.1999 we felt some difficulty in proceeding to answer the question arising for decision because the orders of the authorities below and of the Tribunal did not indicate how the leave account was operated by the appellants and the leave salary provision was made. To appreciate the facts correctly and in that light to settle the law we had directed the Income Tax Appellate Tribunal to frame a supplementary statement of case based on books of account and other relevant contemporaneous records of the appellant which direction was to be complied with within a period of six months. The hearing was adjourned sine die. After a lapse of sixteen months the matter was listed before the Court on 20.7.2000. The only communication received by this Court from the Tribunal was a letter dated 20th June, 2000 asking for another six months time to submit the supplementary statement of case which prayer being unreasonable, was declined. Under Section 258 of the Income Tax Act, 1961, the High Court or the Supreme Court have been empowered to call for supplementary statement of case when they find the one already before it not satisfactory. Article 144 of the Constitution obliges all authorities, civil and judicial, in the territory of India to act in aid of the Supreme Court. Failure to comply with the directions of this court by the Tribunal has to be deplored. We expect the Tribunal to be more responsive and more sensitive to the directions of this Court. We leave this aspect in this case by making only this observation."
34. We may also notice that Government of India Act, 1935 under Section 210 (1) also had a provision similar to Article 144 of the Constitution of India. Section 210 (1) of Government of India Act, 1935 is reproduced below:-
"210. Enforcement of decrees and orders of Federal Court and orders as to discovery, etc- (1) All authorities, civil and judicial, throughout the Federation, shall act in aid of the Federal Court".
36. The principle of law as embodied in Article 141 and 144 of the Constitution of India as discussed by Hon'ble Supreme Court in the aforementioned judgments does not leave any scope whatsoever for either this Court or for any authority in the State Government not to act in accordance with the directions contained in any judgment or order passed by Hon'ble Supreme Court. Any act by any authority in derogation and even in contravention of an order passed by Hon'ble Supreme Court cannot be approved of on any count or for any reason whatsoever."
Refuting those contentions, Sri Goswami, the learned Additional Chief Standing Counsel, submits that the directions contained in the order of 20 November 1986 itself clearly provided that the orders passed by the ADJ's would be contemplated to be orders made under the provisions of the Indian Forest Act, 19273. In that backdrop, it was submitted that the State was neither injuncted nor estopped from assailing the orders so passed. He further submitted that the jurisdiction of the Court under Article 226 of the Constitution was neither specifically nor by intendment excluded. It was also his submission that the power of judicial review as conferred on this Court has been recognised as part of the basic structure of the Constitution. It was submitted that the constitutional jurisdiction as conferred on the Court cannot be understood to have been intended to be excluded by any of the orders passed by the Supreme Court in Banwasi Sewa Ashram.
Sri Goswami further submits that it clearly does not lie in the mouth of the respondents to allege an infraction of the directions framed by the Supreme Court bearing in mind the fact that they themselves chose to invoke the jurisdiction of the concerned Forest Settlement Officer and ADJ in stark violation of the timeframe stipulated therein. According to Sri Goswami, strict timelines had been stipulated by the Supreme Court which were liable to be scrupulously adhered to and as the facts of the instant case itself would evidence, a highly belated claim was entertained and allowed in clear violation of the procedure prescribed by the Supreme Court.
Dealing then with the ambit of the application made by the State on 15 February 2018, it was submitted that the reliefs as framed therein cannot be read without reference to the context in which they were framed. Sri Goswami submitted that the State is faced with a situation where despite closure of proceedings and the Supreme Court mandating that no further claims can be entertained or ruled upon, the Forest Settlement Officers continue to entertain claims and are doing so even now. According to Sri Goswami, even though the Supreme Court had directed that the Courts of the ADJ's be wound down, they are continuing to function and are being approached with claims which are raised and laid belatedly and in any case beyond the time frame as mandated in the orders passed in Banwasi Sewa Ashram. It was his submission that the application which is referred to is not intended to be an action on the part of the State to invoke the jurisdiction of the Supreme Court to go into the individual correctness of orders but to lay down as a rule whether the continued exercise of jurisdiction by the Forest Settlement Officers and the ADJ's is valid in law or not.
Having noticed the submissions addressed on the preliminary objection that was raised, the Court now proceeds to deal with the same as under.
At the very outset, it becomes pertinent to note that as this Court reads the directions issued by the Supreme Court and embodied in the first decision of Banwasi Sewa Ashram rendered on 20 November 1986, it fails to find any vestige of an intendment to denude this Court of its constitutional jurisdiction conferred by Article 226 of the Constitution. It would firstly be apposite to note the backdrop in which the directions as contained in the order of 20 November 1986 came to be passed. The Supreme Court was principally moved by way of a Letter Petition that sought to highlight the injustices being meted out on tribals and traditional forest dwellers residing in that region whose rights of possession over land was being violated without the due process of law being adhered to. It was principally concerned with a violation of their rights and the position in which they stood placed in light of their social and economic backwardness. It was faced with the spectre of their traditional rights to dwell in forest and to use its produce that was being overlooked and disregarded by virtue of those lands being included in a proposed reserved forest without a valid enquiry being undertaken. The Supreme Court also took into consideration the various reports submitted before it which established that their right to object to the proposed inclusion of their lands had been woefully disregarded in violation of the procedure prescribed under the 1927 Act. It was in that backdrop that they proceeded to frame directions evolving a unique process for adjudication of claims. As was observed by this Court in its decision rendered in State of U.P. And Another Vs. The A.D.J. Sonbhadra And Ors.4, the directions as framed by the Supreme Court, evidenced a departure from the statutory procedure otherwise stipulated and contemplated under the 1927 Act. In that sense, the directions as issued constituted the fountainhead and the sole basis of the procedure that was liable to be followed by the Forest Settlement Officers for the purposes of disposal of claims. These directions insofar as they stand embodied in the decision rendered on 20 November 1986 set forth a time frame for submission of objections and their disposal by the Forest Settlement Officers. In a significant departure from the procedure otherwise prescribed under the 1927 Act, the orders of the Forest Settlement Officers were directed to be placed before the concerned ADJ's by way of what was described to be suo moto appeals. The said safeguard appears to have been essentially put into place to ensure that the orders and decisions as made by the Forest Settlement Officers were duly scrutinized by a trained and accomplished judicial authority before being conferred with the attributes of a valid adjudication undertaken under the 1927 Act. It was in that backdrop that it was provided that the orders of the ADJ's. would be entitled to be viewed as orders passed under the Act.
However, the Court finds no observation entered or made either in the order dated 20 November 1986 or of 18 July 1994, which may even remotely tend to indicate or establish the intent of the Supreme Court to oust the jurisdiction of this Court conferred by Article 226 of the Constitution. The debarment of the jurisdiction of this Court to exercise the power of judicial review cannot be lightly assumed especially since that power itself has been recognised as being part of the basic structure of our Constitution. The question whether the jurisdiction of this Court conferred by Article 226 of the Constitution stands ousted and barred and whether the State is estopped from challenging the orders passed by the ADJ's are in fact separate and distinct issues. Learned senior counsel appearing for the contesting private respondent clearly appears to incorrectly assume that they are intermingled. Bearing in mind the constitutional attributes imbued upon Article 226, the respondents were liable to discharge a heavy burden and scale a high standard in order to establish its ouster. This they have woefully failed to do. In any case, from the directions as framed in Banwasi Sewa Ashram, the Court finds itself unable to countenance this contention. The plea raised in this respect is consequently rejected.
Turning then to the issue of estoppel, the Court notes that while the Supreme Court may have observed that the officers of the State Government would be bound to implement the decisions rendered at the end of the adjudicatory process and honour the same, this Court finds itself unable to read those observations as estopping the State from assailing orders passed by the ADJ's if the peculiar facts and circumstances of particular cases so warranted and necessitated. This more so when the orders are assailed on the ground of having been made in violation of those directions themselves. The Court bears in mind the principal submission addressed on behalf of the petitioners who assert that the settlement procedure evolved was never intended to be an unending process or one which was to continue in perpetuity. According to the respondents, contrary to the unambiguous command of the Supreme Court prescribing strict time lines for conclusion of the settlement process, highly belated claims like the one presented by the private respondent were entertained thus constituting a violation of those directions itself. In the considered view of this Court, the concession as given before the Supreme Court cannot possibly be stretched to even those cases and situations where the provisions made in Banwasi Sewa Ashram are themselves violated. The Court also bears in mind the orders passed in Banwasi Sewa Ashram on 10 May 1991, 16 February 1993 and 4 October 1993 when the Supreme Court itself permitted a reopening and reconsideration of adjudications made by ADJ'S by permitting parties to move the authorities by way of review and special review. These orders also clearly establish that finality was not accorded to the first round of adjudication which was concluded pursuant to the order of 20 November 1986. These orders in unambiguous terms conferred a right upon parties to seek review where orders were found to suffer from patent and manifest errors. The plea of estoppel is thus turned down.
Insofar as the liberty accorded to parties to move the Supreme Court even after the writ petition had been finally disposed of is concerned, suffice it to note that the same stood restricted to the need to move that Court "for directions..". The liberty so accorded clearly did not envisage individual adjudications being subjected to challenge before the Supreme Court only. The argument therefore that the State was estopped or that the orders passed in Banwasi Sewa Ashram denude it of the right to assail individual adjudications cannot be countenanced.
That leaves the Court to deal with the application which is stated to have been made by the State and in which a declaration is sought to the effect that all orders passed by the Forest Settlement Officers and ADJ's post 18 July 1994 be declared null and void. As was rightly submitted by Sri Goswami the prayer so addressed cannot be viewed or appreciated without bearing in mind the backdrop in which the application itself came to be made. The background facts which appear to have compelled and constrained the State to move the Supreme Court in 2018 in respect of a matter which had attained closure in 1994 is evident from the following pleadings as taken in that application:
"(x) In compliance of the Order of this Hon'ble Court dated 18.07.1994, the Ld. ADJ, Anpara (at Obera-Sonbhadra), was to function till 30.09.1994. However, new applications of individuals who claim to have rights to the land for which Section 4 Notification of the Indian Forest Act, 1927 has been issued, are still being decided by the Forest Settlement Officer, Sonbhadra and Appeals against the said decisions are still being admitted and adjudicated upon by the Ld. ADJ, Anpara (at Obera-Sonbhadra). Under these circumstances, the Applicant Departmentis aggrieved by the impossibility of issuing Notification under S. 20 of the Indian Forests Act, 1927.
(xi) These applications that are being filed at this belated stage are being filed by 3rd Parties that have no lineage as Tribals and the same are being filed with the motive of staking a claim to land that is not rightfully theirs. The applicant is filing once such example of Shri Ramji Mishra who admittedly is a resident of Bihar as would be evident from the letter dated 02.08.2016 which shows that Shri Ramji Mishra worked as Fuse-man in the Division since 02.04.1986 to 31.01.2003 and was a permanent resident of village and post office Bharoli Via Shahpur Pahi- Shahabad District Ara Bihar. True translated copy of the order dated 27.08.1990 passed by the Forest Settlement Officer, Sonbhadra and true translated copy of the order dated 23.02.1993 passed by the Additional District Judge and true translated copy of the letter dated 02.08.2016 are annexed and marked as ANNEXURE: A-4 (Page 36 to 40 ), ANNEXURE: A-5 (Page 41 to 43 & ANNEXURE: A-6 (Page 44) respectively.
(xii) Similarly the Forest Settlement Officer has given propriety rights to Northern Coal Fields Ltd. (NCL), NTPC and UPSEB and others for about 450 hectares. The applicant is annexing a chart giving some of the details of land given to NCL as well as NTPC are annexed and marked as ANNEXURE: A-7 (Page 45 to 49). The applicant is also annexing the translated copy of the order of the Forest Settlement Officer in case No.6044 NCL Vs. Forest Department dated 07.08.1990 and true translated copy of the order dated 22.04.1992 passed by the Additional District Judge Sonbhadra in Case No.2955/1990 are annexed and marked as Annexure: A-8 (Page 50 to 51) & ANNEXURE A-9 (Page 52 to 53) respectively.
7. With regard to 3rd Parties filing claims and the same being adjudicated in their favour by the Forest Settlement Officer and the Ld. ADJ, the Applicant Department would like to point out the example of one Ramji Mishra to whom 3.3050 hectares of forest land has been awarded in terms of various orders by the Forest Settlement Officer and confirmed by the Additional District Judge. Ramji Mishra is a resident of Bihar who worked as a Fuse man with the UP Jal Vidyut Nigam for the period 02.04.1986 to 31.01.2003. He has so far been awarded 3.3050 hectares of Forest Land in terms of various orders of the FSO and Ld. ADJ. It is also pertinent to point out that in CRL MP 16269/2009, the Applicant Department, had pointed out approximately 60 such outsiders who have been awarded various tracts of land from the Forest Land for which Section 4 Notification had been issued."
From the averments taken in that application, it is manifest that what has driven the State to move the Supreme Court is a continued entertainment of objections by the Forest Settlement Officers and the ADJ's much after and beyond the dates prescribed had elapsed and the time frames as stipulated in the last order of the Supreme Court. The State refers to the order dated 18 July 1994 to submit that in terms of this order the Special Courts of ADJ's were to function only till 30 September 1994 and it was assessed that all proceedings for adjudication and settlement of claims would have come to an end by then. Despite much time having elapsed even after the said date the State asserts in that application that the jurisdiction of the Forest Settlement Officers and ADJ"s is being continually invoked in respect of matters which should have been rendered finality in light of the orders passed. It has referred to various cases and instances where the jurisdiction of the Forest Settlement Officers and ADJ's was invoked as late as in 2016. On a holistic reading of the application, it is therefore clear that what has compelled the State ostensibly to move the Supreme Court is to bring a closure to the entire process of settlement which was to have concluded in light of the directions as contained in the order of 18 July 1994. The application in essence appears to call upon the Supreme Court to clarify and declare whether the settlement process was envisaged to be a continuing and ongoing process or one which was to terminate once the deadline framed by the Supreme Court was reached. The application does not appear to call upon the Supreme Court to go into individual facts or the correctness or otherwise of individual orders passed by the Forest Settlement Officers and ADJ's In view of the above and for all the reasons assigned hereinabove, the preliminary objection fails and is negatived.
B. ON MERITS This petition challenges the orders dated 8 May 1997, 12 March 1999, 29 February 2000 and 11 April 2001 passed by the State respondents. The dispute itself relates to Plot Nos. 439 and 448 which were included in a notification issued by the State under Section 4 of the 1927 Act on 4 July 1970. The private respondent is stated to have filed objection to the inclusion of these plots on 30 April 1997. This objection was entertained by the Forest Settlement Officer despite the specific objection of the State that the same was not maintainable having been made beyond the timelines as fixed by the Supreme Court. It was further asserted by the State in those objections that the land had been rightly included in the proposed reserved forest since it was covered by trees and shrubs and the land was clearly not of a cultivable character. Those objections were overruled by the Forest Settlement Officer by his order of 8 May 1997 on the ground that the respondent had proved being in possession of the plots from 1385 Fasli (corresponding to the English calendar year of 1978). On this score as well as by extending the benefits of Section 131-A of the U.P. Zamindari Abolition and Land Reforms Act, 19505 the claim of the private respondent was allowed and directions framed for exclusion of the two plots from the proposed reserved forest. The aforesaid order was affirmed by the Additional District Judge in suo moto appeal in terms of the judgment rendered on 12 March 1999. The State thereafter appears to have made applications for review and special review which also came to be dismissed and which orders also are assailed in the instant writ petition.
Before this Court, Sri Goswami, the learned Additional Chief Standing Counsel appearing for the State, contends that there was no occasion for the Forest Settlement Officer to have entertained the objections in 1997 in respect of land that had been included in a notification issued under Section 4 decades earlier in 1970. He submitted that the delay has been cursorily condoned by the Forest Settlement Officer alluding to the provisions made in Section 5 of the Limitation Act, 19636 and by only observing that sufficient cause existed for condonation of delay. According to Sri Goswami, the manner in which delay has been condoned clearly flies in the face of the peremptory directions issued by the Supreme Court and the timeframe stipulated in the various orders passed in Banwasi Sewa Ashram. It was submitted that despite clear directions having been issued by the Supreme Court for closure of all settlement and adjudicatory processes by 30 September 1994, the Forest Settlement Officer proceeded to entertain objections preferred by the petitioner in clear violation of the directions of the Supreme Court. It was further submitted that neither the Forest Settlement Officer nor the Additional district Judge rely upon any evidence, which may have established that the nature and character of the land was such that it did not merit inclusion in a proposed reserved forest. According to Sri Goswami, the entire process of adjudication was based solely upon an alleged inspection stated to have been undertaken in 1997 and in any case the Forest Settlement Officer does not place reliance on any material which may have established that in 1970 when the Section 4 Notification was issued, the land did not fall within the genre and category of land which was liable to be included under Section 4 of the 1927 Act. Sri Goswami also refers to the provisions made in Section 5 of the 1927 Act to submit that there could have been no acquisition of rights post the issuance of the Notification issued under Section 4. According to Sri Goswami, the ADJ also committed a manifest error in proceeding to affirm and endorse the decision entered by the Forest Settlement Officer.
The Court firstly notes that the Forest Settlement Officer appears to have proceeded under a misconception that the provisions of Section 5 of the Limitation Act, 1963 applied. As was noticed in the earlier parts of this order as well as the detailed judgment rendered in State of U.P., the procedure for adjudication of rights was governed exclusively by the provisions made by the Supreme Court in Banwasi Sewa Ashram. It was the procedure that was evolved by the Supreme Court there which governed the trial of claims. There was consequently no occasion for the Forest Settlement Officer to place reliance upon the provisions made in Section 5 of the 1963 Act. The Court additionally notes that the private respondent proffered no plausible explanation for having failed to invoke the jurisdiction of the Forest Settlement Officer prior to 1997 in respect of a notification that was issued in 1970. The respondent also did not participate in the settlement process which ensued pursuant to the directions issued in Banwasi Sewa Ashram.
The Court further finds that the nature and character of the land which was alluded to by the State in its objection has also not been appreciated. This principally since the Forest Settlement Officer appears to have based his decision solely on the inspection which was carried out many decades after the Notification under Section 4 had been issued. It has thus clearly erred in failing to consider this aspect which was crucial for the adjudication to be recognised as valid in law. As is further evident from a reading of the order impugned, the Forest Settlement Officer bases the grant of relief to the respondent solely on the fact that she had been in possession from 1385 Fasli. That clearly could not have been determinative since what alone would have been of relevance would be the rights which parties claimed to exist and as inhering in them on the date when the Section 4 Notification had come to be issued. Dealing with the impact of Section 5 of the 1927 Act and the bar to accrual of rights, this Court in State of U.P. observed thus:
"Viewed from the angle of the provisions engrafted in the 1927 Act, the Court notes that once the notification under Section 4 of the 1927 Act came to be issued on 4 July 1970, the statutory restraint comprised in Section 5 of that Act also applied. Section 5, it becomes important to recall, prohibits the acquisition of rights in or over land comprised in a Section 4 notification except by way of succession, grant or contract in writing made by the Government. Section 131 A as is evident does not override or eclipse the prohibition put in place by Section 5 of the 1927 Act. In order, therefore, to accord a harmonious construction upon Section 131A of the 1950 Act bearing in mind Section 5 of the 1927 Act, it must be interpreted to extend at best to land held in cultivatory possession from prior to the issuance of the notification under Section 4..."
It is relevant to note that the respondent does not refer to any evidence to establish a right to possess or to work the land as may have existed prior to 4 July 1970 when the plots in question came to be included in the proposed reserved forest. The respondent asserted a right over the land only from 1978. No evidence appears to have been placed nor is any such proof referred to by the Forest Settlement Officer in order to establish a right of cultivatory possession being exercised by the respondent from prior to the issuance of the notification under Section 4. Even before this Court no evidence or material was either alluded or referred to which could have possibly been read as operating in favour of the respondent. No rights could have either accrued, stood created or been acquired after the notification under Section 4 came to be issued and the land stood included in the proposed reserved forest. The claim of the respondent must resultantly be held to be barred by Section 5 of the 1927 Act.
Insofar as the extension of benefits under Section 131-A is concerned, this Court had an occasion to deal with the scope and ambit of that provision in some detail in State of U.P. where after ultimately analyzing the provisions made under the 1950 Act as well as the Forest Conservation Act, 1980 and the various orders passed by the Supreme Court, it recognized and laid down the legal position to be as under:
"That then takes the Court to deal with the submission addressed in the backdrop of Section 131-A of the 1950 Act. Section 131-A was initially promulgated by way of Ordinance No. 7 of 1987. It was ultimately introduced in the statute by virtue of U.P. Act 14 of 1987. Section 131A principally extends protection to those persons who were found to be in cultivatory possession of land in the portion of District Mirzapur South of the Kaimur Range prior to 30 June 1978 and confers on such individuals the status of a bhumidhar with non transferable rights on such land. Whether this provision would be sufficient to safeguard the asserted interest of the private respondent is the issue that consequently falls for determination. While dealing with this question it would be apposite to bear in mind the fact that by the time that this measure was introduced, the 1980 Act already stood in place. The rights which are claimed by the respondents in terms of its provisions would merit examination and evaluation from a dual perspective- firstly, on the basis of the language of the section itself and other attendant provisions of the 1950 Act and secondly, in the backdrop of the statutory regime governing forests which otherwise exists.
On a plain reading of Section 131A, it is evident that the provision is neither stated to have overriding effect over the other parts of the 1950 Act nor is it worded to be in supersession of other statutes that may operate on the subject of forests. As is manifest, that provision is not worded so as to apply notwithstanding a prohibition or restraint contained in any other enactment which touches the field of forests and rights that may accrue on land on which forests may exist. In its barest form, Section 131A seeks to protect the possession of persons on land which may vest in a Gaon Sabha by virtue of Section 117 of that Act. Section 117 provides that the State Government may by a general or special order vest in a Gaon Sabha or other local authority land that had come to vest with it upon promulgation of the 1950 Act. It becomes relevant to recall that Section 4 of the 1950 Act envisaged the vesting of all estates situate in the State with the Government upon abolition of zamindari. Section 117 while enumerating the categories of vested land that may be transferred not just speaks of forests but also of land cultivable or otherwise, trees, fisheries, ponds, tanks, water channels, pathways and abadi sites. Consequently when Section 131A refers to land vesting in a Gaon Sabha under Section 117, it cannot be understood as being with regard to possession of persons upon forests alone. Possession of a person may be found to exist even on land cultivable or otherwise or on any other category of estates vesting in the State.
The second internal control on the benefit conferred by that provision is manifest from its opening lines itself which makes its provisions subject to Sections 132 and 133A of the 1950 Act. Section 132 of the 1950 Act essentially declares that bhumidhari rights shall not accrue upon the categories of land enumerated therein. This statutory interdict also applies to land declared or held by the Government for a public purpose in terms of Section 132 (c). It would be pertinent to recollect that the land forming subject matter of the instant writ petition formed part of the "Dudhi Forest" which was transferred by the State Government from the Department of Revenue to the Forest Department on 15/16 May 1950, a fact noted in the introductory part of this judgment. It is therefore apparent that a forest under the ownership and control of the State of U.P. existed in 1950 itself. Clearly, therefore, in 1950 the State of U.P. held land which constituted a forest. That the creation and preservation of forests is a constitutional obligation and would clearly constitute a public purpose cannot possibly be disputed. Significantly, clause (c) of Section 132 while expanding upon the categories which would constitute land held for a public purpose employs the phrase "..in particular and without prejudice to the generality of this clause...". It is thus evident that clause (c), while specifying categories of lands held for a public purpose, is not exhaustive but merely illustrative. On a foundational plane, therefore, the Court finds it difficult to accept the proposition that possessory rights claimed on forests were entitled to be perfected by virtue of Section 131A. The problem, however arises on account of that provision specifically referring to land in respect of which a notification under Section 20 of the 1927 may not have been issued and thus evincing an intent to extend the coverage of Section 131A even to forests.
The Court finds that there is no explicit or straightforward expression of intent to extend the benefits of that provision to land covered under Section 4 of the 1927 Act. Assuming that was the legislative intent, it was open for the Legislature to have said so plainly. It is apposite to note that the provision was introduced in 1987 by which time the 1980 Act was already in force and Section 2 thereof applied. It also becomes apposite to note that U.P. Act 14 of 1987 was not reserved for the assent of the President. More importantly, Parliament by virtue of Act No. 69 of 1988 introduced clause (iii) in Section 2 of the 1980 Act restraining State Governments from assigning forest land to persons by way of lease or otherwise. Of equal import is the order dated 8 February 1989 passed in Banwasi Sewa Ashram which clarified that land covered in a notification under Section 4 of the 1927 Act would also be subject to the rigours imposed by Section 2 of the 1980 Act. If Section 131A were to be conferred the interpretation as suggested by the respondents it would clearly breach the provisions of Section 2 of the 1980 Act.
The Court also bears in mind the decision rendered by the Supreme Court in Godavarman which explained the expression forest to be understood not just as defined in dictionaries but also to any land which answered the description of forest as generally understood as also land recorded as forest irrespective of ownership. The rights consequently claimed by virtue of Section 131A cannot be recognised as flowing unhindered by the restrictions imposed in that decision.
Viewed from the angle of the provisions engrafted in the 1927 Act, the Court notes that once the notification under Section 4 of the 1927 Act came to be issued on 4 July 1970, the statutory restraint comprised in Section 5 of that Act also applied. Section 5, it becomes important to recall, prohibits the acquisition of rights in or over land comprised in a Section 4 notification except by way of succession, grant, or contract in writing made by the Government. Section 131A as is evident does not override or eclipse the prohibition put in place by Section 5 of the 1927 Act. In order, therefore, to accord a harmonious construction upon Section 131A of the 1950 Act bearing in mind Section 5 of the 1927 Act, it must be interpreted to extend at best to land held in cultivatory possession from prior to the issuance of the notification under Section 4. The assertion of a right under Section 131A and a recognition thereof in law would also have to be tested on the anvil of Section 2 of the 1980 and the orders of the Supreme Court referred to above. The extent of protection which can be recognised cannot be viewed in the abstract and in any case cannot be adjudged without bearing in mind the provisions made in the 1927 and the 1980 Acts."
From the exposition of the law with respect to the applicability of Section 131-A, it is clear and manifest that no relief was liable to be granted to the private respondent de hors a consideration of the aforesaid factors.
Accordingly and for the reasons aforementioned, the instant writ petition is allowed. The orders dated 8 May 1997 and 12 March 1999 are quashed. Since the principal orders have been quashed, the subsequent orders dated 29 February 2000 and 11 April 2001 shall also resultantly stand set aside.
Order Date :- 13.11.2019 Arun K. Singh (Yashwant Varma, J.)