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Judgment
N.K. Mehrotra, J.
This is a petition for issuing a writ in the nature of certiorari quashing the entire alleged proceedings conducted and completed under Chapter II of the Indian Forest Act by the opposite parties for declaring plot Nos.15/2, 16, 17, 18/1, 18/2, 78, 82 and 7/1 of Village Narainpur Jhingha, ParganaTulsipur, Tehsil Balrampur, District as reserve forest as contained in Annexure Nos.14 and 1 to the writ petition and for issuing a writ in the, nature of mandamus directing the Divisional Forest Officer, Northern Gonda Division, Gonda to consider the application as contained in Annexure No. 14 of the writ petition for cutting the trees on the aforementioned plots according to rules.
The case of the petitioners is that one Ayodhya son of Bindra Murao was hereditary tenant of the agricultural plot Nos.151/2,16 and 18/1. He became ''sirdar'' under Section 19 of the U.P.Z.A. & L.R. Act and after his death Sant Ram, Ram Jas and Ram Dheeraj inherited the ''sirdari'' right. In the year 1977, the bhumidhari rights were conferred under Section 130 of the U.P.Z.A. & L.R. Act on his heirs namely, Sant Ram, Ram Jas and Ram Dheeraj. The names of these persons are entered in the revenue record. The petitioner No.1 purchased the aforesaid plots from Sant Ram, Ram Jas and Ram Dheerajon29.3.1990andhis name has been entered in the khatauni khatas No.20 of 1359 Fasli to 1403 Fasli. One Panchoo son of Jan Mohammad became ''sirdar'' of those plots. After the death of Panchoo, his son Ismail became ''sirdar1 of those plots and in the year 1977 Ismail became bhumidhar. His name finds place in the revenue record of the year 1359 Fasli. The petitioner No.1 purchased these bhumidhari plot Nos.78 and 82 from Ismail as per registered saledeed dated 29.3.1990 and his name was entered in the khatauni khata No.5 of 1398 Fasli to 1403 Fasli. One Balraj Singh son of Sri Arjun Singh was conferred bhumidhari rights in the year 1977 under Section 130 of the U.P.Z.A. & L.R. Act in the said plot No.7/1. He transferred this land to Anand Kumar. The petitioner No.2 purchased the said bhumidhari plot No.7/1 from Anand Kumar as per the registered sale deed dated 16.11.1994 and his name has been entered in the khatauni khata No.1 for the year 1398 Fasli to 1403 Fasli.
There are standing trees on all these plots. The petitioner applied for permission to cut these trees to the Divisional Forest Officer, North Gonda Division, Gonda on 15.8.1995. A copy of the said application is Annexure No.14 to the writ petition. The Divisional Forest Officer informed the petitioners that the plots in question were declared as reserve forest under Section 20 of the Indian Forest Act on 4.7.1970 and 11.1.1971. The application for permission to cut the trees could not be considered because of the alleged notification. The petitioners made several attempts to get the details of the proceedings of this notification but those proceedings were not made available to the petitioners. It is alleged that Section 3 of the Indian Forest Act does not empower the State Government to constitute the land which is comprised in any holding as reserve forest. According to the petitioners, those plots shown in the schedule attached to the notification dated 19.4.1954 and 11.8.1968 have been declared as reserve forest with effect from 15.9.1969 and 1.11.1970 and the plots in question do not find place in those schedules attached to the notification under Section 20 of the Indian Forest Act. It is also alleged that there was some proposal of the Conservator of the Forest, Eastern Circle, U.P. that the land holders of 82.87 Acres of land of village Narainpur Jhingha be acquired under the Land Acquisition Act in exchange of 63 Acres of forest land in village Ganeshpur in North Gonda Forest Division. It appears from the proposal that it was proposed that the plots of these land may be acquired by the Government. It is further alleged that the petitioners have come to know that even after this proposal, their plots in question were never acquired by the Forest Department and therefore, the contents of letter dated 22.9.1995 that the land of plots in question was declared as reserve forest, is wholly incorrect and the petitioners are entitled to get permission for cutting the trees grown by them on the disputed land.
A counter affidavit has been filed by the opposite parties. It is admitted that the letter (Annexure No.1) was issued by the Divisional Forest Officer, North Gonda Forest Division, Gonda due to ministerial mistake and the plots in dispute were not declared as reserve forest. It is alleged that the other plots surrounding the aforesaid
plots were declared as reserve forest. It is further submitted that after declaration of reserve forest in respect of surrounding plots to the plots in question, it was found that the plots in dispute have been left for being notified as "reserve forest"''. Therefore, with the permission of the State Government dated 16.1.1970 the plots in question were exchanged from the original tenure holders namely; Sri Ayodhya son of Sri Bindra, Sri Panchoo son of Sri Jan Mohammad, and Sri Balraj Singh son of Sri Arjun Singh in view of their offer letter dated 28.2.1965. The order of the Government and the offer letter of these persons have been filed as Annexure Nos. CA1 & CA2 to the counter affidavit. It is alleged that the original tenure holders were given plot Nos.143, 29/14,109/7,110/8, 99/14 and 99/7 of village Garhwa in exchange and these tenure holders were found in possession later on during the consolidation proceedings and they were coultivating those plots. It is admitted to the opposite parties that even after exchange of the land in January, 1970, the revenue records were not amended. The exchange was not recorded in the khataunis. It is contended that because of the possession of the original tenure holders over the land which they got in exchange, they have lost their right over the disputed land and the saledeed executed in favour of the petitioners created no right in favour of the petitioners. It is also submitted that the forest area notified under Section 20 of the Indian Forest Act has heen declared as sanctuary vide Government Order dated 14.11.1988 as contained in Annexure No.CA4 to the counter affidavit.
We have seen the record relating to the declaration of the reserve forest produced by the Range Officer of the department before us.
A perusal of the respective averments of the parties in the pleadings goes to show that it is not denied that Ayodhya, Panchoo and Balraj were the original tenure holders of the disputed plots. They were conferred the bhumidhari rights under the provisions of the U.P.Z.A. & L.R. Act. The legal heirs of Ayodhya, Panchoo and Balraj executed the registered saledeed of these plots in favour of the petitioners. It is also admitted that after the purchase of these plots by the petitioners, their names were entered in the khatauni being maintained in the revenue record and till date, there is no entry of title in favour of the Forest Department or there is no entry of the reserve forest in the khatauni of these plots in question. It is also admitted that the letter issued by the Divisional Forest Officer as contained in Annexure No.1 to the writ petition by which it was intimated that these plots were notified under Section 20 of the Indian Forest Act as reserve forest, was misconceived. It is also admitted that the land of these plots in question was never declared as reserve forest and it was only a surrounding plots which were declared as reserve forest. It is also admitted that even after the alleged exchange of plots between the forest department and the original tenure holders, no entry of exchange of plots was made in the khatauni relating to the disputed plots. Even after filing of the writ petition, no entry in favour of the Forest Department on the basis of the alleged exchange has been made in the revenue record pertaining to plots in question. It is also admitted case of the opposite parties that even after permission for exchange was granted by the State Government vide Annexure No.CA1, the proceedings for acquiring the land of the disputed plots under the Land Acquisition Act could not be drawn as was advised by the Government in the letter dated 16.1.1970 (Annexure No.CA1).
The only case of the opposite parties is that after exchange in the year 1970, some land of village Garhwa was given to the original tenure holders and the land of the disputed plots was taken by the Forest Department in exchange and since then both the parties are in possession over their respective land.
The relevant provision under Section 3 of the Indian Forest Act is as follows:
"3. Power to reserve forest 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 reserved forest in the manner hereinafter provided.
Explanation The expression ''holding'' shall have the meaning assigned to it in the UP. Tenancy Act, 1939 and the expression ''village abadi'' shall have the meaning assigned to it in the U.P. Village Abadi Act, 1947."
It is clear from the aforesaid provision that the land comprised in any holding or grove or in any village abadi could not be notified as reserve forest under Section 4 of the Indian Forest Act. The holding is defined under Section 3(7) of the U.P. Tenancy Act 1939 which is as follows:
"3(7)."holding" means a parcel or parcels of land held under one lease, engagement or grant or in the absence of such lease, engagement or grant under one tenure and in the case of Thekadar includes the theka area."
It is not denied the learned Standing Counsel that the original tenure holders were the bhumidhars and the land in question was their holdings. If, this fact is not denied, then it is clear by the aforesaid provision under Section 3 of Indian Forest Act that this land of holding of Ayodhya, Panchoo and Balraj predecessor in title of the petitioners, could be declared as reserve forest nor it is the case of opposite parties that the disputed land of the plots in question was ever notified under Section 20 of Indian Forest Act. The opposite parties have themselves admitted that the letter (Annexure No.1) issued by the Divisional Forest Officer was misconceived.
Now the question is as to whether the opposite parties have any title over the disputed land on the basis of the alleged exchange of the land and whether if, any exchange was made, it is in accordance with law. The procedure for declaring any land as forest land is given under Section 4 to 20 of the Indian Forest Act. It is provided under Section 11 of the Indian Forest Act that even if, after the notification under Section 4 of the Forest Act somebody claims his right, the Forest Settlement Officer has only three option if, he admits any such claim, he shall either (i) exclude such land from the limits of the proposed forest; or (ii) come to an agreement with the owner thereof for the surrender of his rights; or (iii) proceed to acquire such land in the manner provided by the Land Acquisition Act, 1894. Since in the instant case admittedly there has been no notification under Section 4 of the Indian Forest Act, the question of exercising power under Section 11 of the Forest Act by the Forest Settlement Officer does not arise.
Now the question is how the land could be exchanged? For that, there is a provision under Section 161 of the U.P.Z.A. & L.R.Act, 1950, which is as follows:
"161. Exchange (1) A bhumidhari may exchange with
(a) any other bhumidhari land held by him, or
(b) any Gaon Sabha or local authority, lands for the time being vested in it under Section 117.
Provided that no exchange shall be made except with the permission of an Assistant Collector who shall refuse permission if the difference between the rental value of land given in exchange and of land received in exchange calculated at hereditary rates in more than 10 per cent of the lower rental value.
(1 A) Where the Assistant Collector permits exchange he shall also order the relevant annual registers to be corrected accordingly.
(2) On exchange made in accordance with subsection (1) they shall have the same rights in the land so received in exchange as they had in the land given in exchange."
It is no body''s case that this procedure was ever followed by the opposite parties for the purpose of exchange of land as alleged by them. Even the State Government at the time of according permission for exchange of the land has directed through Annexure No.CA1 that the said land which is being taken for reserve forest be acquired under the Land Acquisition Act and the land proposed to be given in exchange be given to the tenure holders by way of compensation. These proceedings never took place. Moreover, it is nobody''s case that the Forest Department has perfected its'' title by adverse possession or the original tenure holders have perfected their title by adverse possession over the land which is alleged to have been given to them in exchange. The exchange of the land is not found in accordance with law, therefore, the possession if any does not confer title to either of the parties either on the exchanged land or on the land of the disputed plots to the Forest Department. We find that the petitioners have legal title over the disputed land and the Forest Department does not have any title either by issuing notification under Section 20 of the Indian Forest Act or by acquiring the land under the Land Acquisition Act or by perfecting title on the basis of adverse possession.
In view of the above, the writ petition is to be allowed but so far as the first prayer is concerned with regard to the quashing of the alleged proceedings under Chapter II of the Indian Forest Act is concerned, such relief is uncalled for because the opposite parties have themselves admitted that no proceedings are pending for declaring the disputed land as ''reserve forest'' nor the land of the disputed plots were ever declared as ''reserve forest''. Since there are no proceedings, there is no question of issuing a writ in the nature of certiorari for quashing these proceedings.
Moreover in our opinion, no such relief as prayed in relief No.1 can be granted as any authority under an Statute cannot be restrained from going recourse to the due process of law but since as is admitted case, till the plots in question are not declared and notified as reserve forest, the opposite parties would not interfere in the possession of the petitioners as owners of the plots in question except in accordance with law as discussed above. In case, the petitioners wish to cut the standing trees, then they would have to approach the opposite parties for permission, which would be considered in accordance with law. However, the action of the opposite parties in not permitting the petitioners to lift the trees which have already fallen down or not to permit the petitioners to cut the trees without any proceeding for the purpose of issuing notification of reserve forest is wholly unfounded and cannot be sustained. Therefore, the petitioners are only entitled for lifting of the fallen trees if, for that no permission is required under any law. So far as the permission for cutting the trees is concerned, it shall be considered by the opposite parties in accordance with law but it would not be refused on the ground that the plots in question are notified as reserve forest as has been shown by issuing letter as contained in Annexure No.1 to the writ petition because admittedly this letter is misconceived as per averments in the counter affidavit.
In view of the above, the writ petition is allowed with the direction to the Divisional Forest Officer, North Gonda Forest Division, Gonda to consider and dispose of the pending application of the petitioners as contained in Annexure No. 14 to the writ petition in accordance with rules for grant of permission to cut the trees over the plots in question expeditiously and not to interfere in taking the wood of the fallen trees of the plots in question which has not been declared as reserve forest.
(Petition allowed)