State of U.P. vs Daya Ram and Others

Devi Prasad Singh, J.—Heard learned Standing Counsel Shri Ravi Nath Tilahri and Shri R.J. Trivedi, learned counsel for the private respondents.

The controversy relates to Khasra Plot No.547, 681 B and 682 measuring area of 2.70, 27.060 and 6.755 acres respectively. In pursuance to power conferred by Section 117 of the U.P.Z.A. and L.R. Act, the State Government had issued notification dated 11.10.1952 declaring that in all 212 acres of land specified in the schedule of the said notification shall not be vested in Gram Sabha. A copy of the notification dated 11.10.1952 has been filed as Annexure 4 to the writ petition. Thereafter, by subsequent notification dated 29th April 1954 issued under Section 4 of the Indian Forest Act (in short hereinafter referred as the ''Act'') the State Government had proposed that the said 212 acres of land to be constituted as reserved forest. A copy of the notification dated 29th April 1954 has been filed as Annexure5 to the writ petition. In response to notification dated 29th April 1954 admittedly private respondent No.1 had not filed any objection in pursuance to provision contained in Section 6 of the Act. Thereafter land in question measuring 211.94 acres was notified as reserved forest land under Section 20 of the Act by notification dated 3.11.1973. A copy of the notification issued under Section 20 of the Act has been filed as Annexure 6 to the writ petition. According to petitioner''s counsel the said forest land was demarcated and boundary pillar were fixed by the Forest Settlement Officer showing the ownership of the forest department an area measuring 211.94 acres. A copy of the sketch map has been filed as Annexure 7 to the writ petition.

After notification of consolidation proceeding, an objection under Section 9 of the Consolidation of Holding Act (in short hereinafter referred as the ''CH Act'') was filed by the petitioner. Consolidation Officer had rejected the objection by order dated 23rd April 1979, a copy of which has been filed as Annexure3 to the writ petition. An appeal preferred by the petitioner was also dismissed by the impugned order dated 17th March 1980 filed as Annexure2 to the writ petition. The Deputy Director of Consolidation had upheld the order passed by the subordinate revenue Court by impugned order dated 23rd October, 1982, a copy of which has been filed as Annexure1 to the writ petition. While upholding the finding of Consolidation Officer, the Settlement Officer, Consolidation as well as Deputy Director of Consolidation had relied upon the provisions contained in Section 3 of the Act incorporated by U.P. Amendment notified on 23.11.1965. It has been held that while issuing notification under Section 4 read with Section 20 of the Act it was not incumbent upon the authorities to declare the land of opposite party No.1 as reserved forest land being his holding under sirdari right. In the basic year entry the name of opposite party No.1 has been recorded as sirdar. Accordingly in view of provision contained in Section 3 of the Act incorporated through U.P. Amendment it has been held that notification issued in pursuance to power conferred by Section 4 of the Act was void ab initio hence liable to be ignored.

In view of above the sole question call for adjudication by this Court is as to whether in view of provision contained in Section 3 of the Act the right of opposite party No.1 has been protected and his land could not have been declared as reserved forest land by issuing notification under Section 4 read with Section 20 of the Act.

While assailing the impugned orders Shri Ravi Nath Tilahri, learned counsel for the petitioner had relied upon the judgment of Apex Court as well as this Court reported in 1996 (5) SCC 194, State of U.P. v. Deputy Director of Consolidation and Others, AIR 1963 SC 1019, Mahendra Lal Jaini v. State of U.P. and Others and 2004 (96) RD 325, State of U.P. and Another v. M/s Ramgarh Farms Industries Ltd.

On the other hand, learned counsel for the private respondents Shri R.J. Trivedi had relied upon the judgments of this Court reported in 1979 RD 316, Divisional Forest Officer v. Deputy Director, Consolidation and AIR 1977 Allahabad 192, The State of U.P. v. Mahant Avaidh Nath, which have been considered and relied upon by the Settlement Officer, Consolidation while dismissing the appeal.

In view of above it is necessary to examine the provisions contained in Chapter II of the Act. Section 3 provides that the State Government may constitute any forest land or wasteland 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. However, the U.P. Amendment by substituting new section gives an exception providing that any holding grove or village abadi shall not be declared as reserved forest.

Section 4 provides for the issue of a notification declaring the intention of the Government to constitute a reserved forest.

Section 5 bars accrual of forest rights in the area covered by the notification under Section 4 after the issue of the notification.

Section 6, inter alia, gives power to the Forest Settlement Officer to issue a proclamation 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 gives power to the Forest Settlement Officer to investigate the objection.

Section 8 prescribes that the Forest Settlement Officer shall have the same powers as a Civil Court has in the trial of a suit.

Section 9, inter alia, provides for the extinction of rights where no claim is made under Section 6.

Section 11(1) lays down that in the case of a claim to a right in or over any land, other than a right of way or right of pasture, or a right to forest produce or water course, the Forest Settlement Officer shall pass an order admitting or rejecting the same in whole or in part. In the event of admitting the right of any person to the land, the Forest Settlement Officer, under Section 11(2), can either exclude such land from the limits 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 appeal from various orders under the Act and Section 18(4) for revision before the State Government. When all the proceedings provided under Sections 3 to 19 are over the State Government has to publish a notification under Section 30 specifying definitely the limits of the forest which is to be reserved and declaring the same to be reserved form the date fixed by the notification.

Since original Section 3 of the Act has been substituted by U.P. Amendment and is a subject matter of interpretation under the present writ petition, hence, for convenience it is reproduced as under:

�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 the meaning assigned to it in the U.P. Village Abadi Act, 1947". [vide U.P. Act 23 of 1965, Section 2 (w.e.f. 23.11.1965)].�

In the present case, admittedly notification under Section 4 of the Act was issued on 29.4.1994. However, notification under Section 20 of the Act was issued on 3.11.1973. Accordingly, whether Section 3 of the Act substituted by U.P. Amendment will have got any assistance to the private respondents seems to be sole question involved in the present writ petition. Learned counsel for the petitioner, Shri Ravi Nath Tilahri had submitted that the nature of land in question should be judged on the basis of the situation existing on 29th April 1994 i.e. the date when notification under Section 4 of the Act was issued. He submitted that Section 3 of the Act substituted by U.P. Amendment has got prospective application and it shall not be of any assistance to private respondents to exclude the land in question from the purview of Forest Act. It has also been submitted that private respondents is only tenure holder having sirdar right hence he can not raise any grievance under Section 4 read with Section 20 of the Act. A plain reading of Section 3 substituted by U.P. Amendment in the Act indicates that it has got prospective application. It is settled law that unless an enactment specifically provides that it shall come into force retrospectively, its application will always be prospective in nature, w.e.f. from the date of notification. Accordingly Section 3 substituted by U.P. Amendment shall come into force on 23.11.1965 i.e. the date of its notification as published in the official gazette and not prior to that. Therefore any notification issued under the Act prior to 23.11.1965 shall not be affected by the Section 3 of the Act substituted by the U.P. Amendment.

In the case of State of U.P. v. Deputy Director of Consolidation (supra) their Lordships of Apex Court held that whenever a question arises as to whether a land is covered under Section 3 of the Act or not then such controversy should be determined on the basis of right and title of the parties existing on the date of notification issued under Section 4 of the Act. It has been further held by Apex Court that the Act is a complete code in itself and notification issued under the Act is binding on Consolidation authorities in the same way as the decree of Civil Court. In case no objection is filed by the aggrieved party after issuance of notification under Section 4 of the Act then such person will have no right to raise grievance in the Consolidation Court.

For convenience relevant portion from the judgment of Apex Court in the case of State of U.P. v. Deputy Director of Consolidation (supra) is reproduced as under:

�8. The nature of the landwhether covered by Section 3 of the Act or notcould only be determined on the date of the notification under Section 4 of the Act which was issued on 29.3.1954. Neither the consolidation authorities nor the High Court have gone into the question as to what was the nature of the land on the relevant date. The consolidation authorities recorded their findings in the year 196869. They were wholly obivious of the nature of the land 1415 years back in the year 1954.

It is thus obivious 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 a 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 reserve 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 a 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 objections qua the said notification before the consolidation authorities. The consolidation authorities were bound by the notification which had achieved finality.�

The law laid down by the Apex Court in the aforementioned case State of U.P. v. Deputy Director (supra) has been followed by the Division Bench of this Court in a case of State of U.P. v. M/s Ramgarh (supra). The Division Bench of this Court while following the judgment of Apex Court (supra) had proceeded to held that unless the order passed under the Forest Act are specifically challenged or set aside they can not be ignored.

For convenience relevant portion from the Division Bench judgment of this Court in M/s Ramgarh (supra) is reproduced as under:

�20. Applying the principles laid down by the Apex Court in the case of Government of Orissa (supra) to the instant case we are of the opinion that unless the orders passed under the Forest Act are specifically challenged and are set aside, they cannot be ignored and have to be given effect to.�

In the case of Mahendra Lal (supra), Hon''ble Supreme Court held that persons holding right of bhumidhar, sirdar or asami are all tenure holders and they hold their tenure under the State.

Relevant portion from the Apex Court judgment in the case of Mahendra Lal (supra) is reproduced as under:

�Thus bhumidhar, sirdar and asami are all tenureholders under the Abolition Act and they hold their tenure under the state in which the proprietary right vested under Section 6. It is true that bhumidhars have certain wider rights in their tenures as compared to sirdars; similarly sirdars have wider rights as compared to asamis, but nonetheless all the three are mere tenureholderswith varying rightsunder the state which is the proprietor of the entire land in the state to which the Abolition ''Act applied�����.

It is true that a bhumidhar has got a heritable and transferable right and he can use his holding for any purpose including industrial and residential purpose and if he does so that part of the holding will be demarcated under Section 143. It is also true that generally speaking there is not ejectment of a bhumidhar and no forfeiture of his land.�

Keeping in view the law settled by the Apex Court, while considering the controversy under the CH Act the Consolidation Courts were not correct in ignoring the notification issued under Section 4 of the Act. The nature of rights of the parties of the land in dispute should have been seen as was existing on 29th April 1954 when the statutory notification under Section 4 of the Act was issued. The benefit of Section 3 of the Act substituted by the U.P. Amendment may be available only in case a notification would have been issued after 23.11.1965 i.e. the date when by U.P. Amendment Section 3 was substituted. Since the process to declare reserved forest land was initiated on 29th April 1954 by issuing notification under Section 4 of the Act, the State was entitled to issue the subsequent notification dated 3.11.1973 in pursuance to power conferred by Section 20 of the Act after considering the objections if any filed by the parties. In the present case, since, no objection was filed by the petitioner, he has got no right to assail the notification issued under Section 4 readwith Section 20 of the Act. The notification issued under the Act was binding on the consolidation Courts and the consolidation Courts were not correct in recording the finding that the notification under Section 4 readwith Section 20 of the Act was void ab initio, hence liable to be ignored.

It is also settled law that even if a Government order is wrong or incorrect unless it is set aside by the competent authority or a Court, it may cover the field. In case private respondent was aggrieved by notification issued under SectIon 4 readwith Section 20 of the Act then it was incumbent upon him (opposite party No.1) to adopt appropriate recourse provided under law for setting aside those notifications. Respondents No.1 had neither filed any objection in response to notification issued under Section 4 of the Act nor adopted any recourse under law to challenge those notification in a Court of competent jurisdiction. Accordingly, the statutory notification issued under Section 4 readwith Section 20 of the Act shall cover the field unless they are set aside in accordance to law. The consolidation Court was having no jurisdiction to ignore those notifications more so when the notification issue under Section 4 of the Act was issued prior to 23.11.1965.

Hon''ble Supreme Court in a case reported in AIR 1991 SC 2219, State of Punjab and Others v. Gurdev Singh, Ashok Kumar while relying upon the observation of Lord Redeliffe held that unless the necessary proceedings is initiated against an order to invalidate, it shall remain effective. For convenience relevant portion from the judgment of Apex Court in a case of State of Punjab (supra) is reproduced as under:

�But none the less the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court. In Smith v. East Elloe Rural District Council, (1956) AC 736 at p.769 Lord Redeliffe observed:

�An order even of not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.�

Apropos to this principle, Prof. Wade states: �the principles must be equally true even where the ''brand of invalidity'' is plainly visible; for there also the order can effectively be resisted in law only by obtaining the decision of the Court (see: Administrative Law 6th Ed. P. 352) Prof. Wade sums up these principled:

�The truth of the matter is that the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiffs lack of standing, because he does not deserve a discretionary remedy because he was waived his rights, or for some other legal reason. In any such case the ''void'' order remains effective and is in reality valid. It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against one another.� (Ibid p.352)

It will be clear form these principles, the party aggrieved by the invalidity of the order has to approach the Court for relieve of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court can not give the declaration sought for.�

The cases relied upon by the respondents'' counsel as well as Settlement Officer, Consolidation does not seem to applicable under the facts and circumstances of the case. More so the recent judgment of Hon''ble Supreme Court, namely State of U.P. v. Deputy Director of Consolidation (supra) referred hereinabove is binding under Article 141 of the Constitution of India. Accordingly, the cases relied upon by respondents counsel i.e. Mahant Avaidh Nath (supra) and Divisional Forest Officer (supra) shall not cover the field being contrary to the judgment of Apex Court (supra).

In view of above impugned judgments passed by the Consolidation Courts are not sustainable and deserve to be set aside. Writ Peititon is liable to be allowed.

Accordingly, a writ in the nature of certiorari is issued quashing the impugned judgment and order dated 23.10.1982 passed by the Deputy Director of Consolidation, order dated 17.3.1980 passed by Settlement Officer, Consolidation and order dated 23.4.1979 passed by the Consolidation Officer as contained in Annexure1, 2 and 3 respectively with consequential benefits.

Writ Petition is allowed accordingly. No order as to costs.

(Petition allowed)