Dokham Tibtean Foundation Society vs State of Uttaranchal Service and Others

Sudhanshu Dhulia, J.—The Petitioner is a Society, registered under the Societies Registration Act, 1860. It is aggrieved by the orders passed by the forest authorities dated 27-6-2005 and 28-7-2005 (annexed as Annexure No. 1 to the writ petition) by which the Petitioner has been restrained from making any construction on the land in dispute. According to the Petitioner, it is a society of Tibteans who are presently having the status of refugees in India. They were allotted a land under Bhudan Yagya Act, 1950 measuring 32 acres situated at village Tauli, Pargana Central, Dehradun which was subsequently exchanged with the land situated at village Arkedia Grant, Pargana Central, Dehradun. As per the averments of the Petitioner, proceedings were initiated u/s 166 of U.P.Z.A. & L.R. Act by which the State had taken possession of the land which was given to the Petitioner under the Bhudan Yagya Act which was challenged by the Petitioner before the revenue authority and order was passed in favour of the Petitioner. Subsequently the State had challenged the order of the revenue authority by filing the writ petition no 5774/ 2001 (M/S) which was dismissed and consequently a belated SLP filed by the State before the Hon''ble Supreme Court was dismissed on the ground of delay.

Apart from this, the Petitioner had also filed a civil suit for permanent injunction against the State authority which was decreed in its favour. However, in appeal it was set aside by the Court in F.A. No. 64/2003. According to the Petitioner, it has filed an SLP before the Hon''ble Supreme Court challenging the orders of the High Court passed in the First Appeal which has been admitted and the appeal is pending.

However, the present matter though pertains to the same land is on different issue altogether. In the present case, notification has been issued u/s 4 of the Indian Forest Act, 1927 (from hereinafter referred to as the "Act"). Section 4 of the Act reads as under:

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.

There is no dispute regarding the fact that such a notification has been issued u/s 4 of the Act vide notification No. 6276/14-(34)-70 dated 13-10-1970. Consequent to such a notification any construction or any cultivation may not be made. This provision is given u/s 5 of the Act which reads as under:

Bar of accrual of forest-rights. - After the issue of a notification u/s 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.

Therefore, the admitted position of law would be that the land which is presently in dispute a notification has been issued by the State Government u/s 4 of the Act and, therefore, no construction can be made on this land by the Petitioner. Even if any construction is made it would be in violation of the law. The Petitioner has challenged the orders dated 27-6-2005 and 28-7-2005 whereby the Petitioner has been restrained from making any construction on the land which has been notified u/s 4 of the Act. There is no anomaly in the said orders which have been presently impugned in the writ petition, as the said orders of the authorities are only stating the position of law as given u/s 5 of the Act. This Court finds no anomaly in these orders. The orders are passed perfectly in accordance with law and in fact these orders are only in compliance with the provisions of Section 4 & 5 of the Act.

A similar controversy had in fact come up before this Court earlier where in Writ Petition No. 1301/2005 (M/B) Doon Housing Company Private Ltd. v. State of Uttaranchal, the Division Bench of this Court was of considered view that even though notification u/s 4 of the Act has been issued and the proceedings have not been concluded u/s 20 of the Act after a lapse of many years, no one has got a right to violate the provisions of the Act and start making constructions because that would be in violation of Section 5 of the Act.

Statement has also been made at the bar by Mr. Ashok Aggarwal, Learned Counsel for the Petitioner that since his matter is pending before the Hon''ble Supreme Court, this Court may not interfere with the matter. This argument of the Petitioner is totally misconceived inasmuch as the order presently impugned in the writ petition was passed in the year 2005 which was much earlier to the interim order of the Hon''ble Apex Court in the year 2008. Apart from this, the controversy before the Hon''ble Apex Court is entirely different from the controversy before this Court. The matter before the Hon''ble Supreme Court is regarding status of the Petitioner regarding the land where the controversy before this Court is as to whether the orders passed by the forest authorities are in accordance with law or not. This Court, therefore, is of considered view that there is no anomaly in the orders passed by the forest authorities. Writ petition is totally without merit and is dismissed.

Interim order, if any, is also vacated. No order as to costs.